[Senate Executive Report 105-23]
[From the U.S. Government Publishing Office]
105th Congress Exec. Rept.
SENATE
2d Session 105-23
_______________________________________________________________________
EXTRADITION TREATIES WITH ARGENTINA, AUSTRIA, BARBADOS, CYPRUS,
FRANCE, INDIA, LUXEMBOURG, MEXICO, POLAND, SPAIN, TRINIDAD & TOBAGO,
ZIMBABWE, ANTIGUA & BARBUDA, DOMINICA, GRENADA, ST. KITTS & NEVIS, ST.
LUCIA, AND ST. VINCENT & THE GRENADINES
_______
October 14 (legislation day, October 2), 1998.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
[To accompany Treaty Docs. 105-10; 105-13; 105-14; 105-15; 105-16; 105-
18; 105-19; 105-20; 105-21; 105-30; 105-33; 105-46; and 105-50.]
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 Grand Duchy of
Luxembourg, signed at Washington on October 1, 1996 (Treaty
Doc. 105-10); the Extradition Treaty between the United States
of America and France, which includes an Agreed Minute, signed
at Paris on April 23, 1996 (Treaty Doc. 105-13); the
Extradition Treaty Between the United States of America and the
Republic of Poland, signed at Washington on July 10, 1996
(Treaty Doc. 105-14); the Third Supplementary Extradition
Treaty Between the United States of America and the Kingdom of
Spain, signed at Madrid on March 12, 1996 (Treaty Doc. 105-15);
the Extradition Treaty Between the Government of the United
States of America and the Government of the Republic of Cyprus,
signed at Washington on June 17, 1996 (Treaty Doc. 105-16); the
Extradition Treaty Between the United States of America and the
Argentine Republic, signed at Buenos Aires on June 10, 1997
(Treaty Doc. 105-18); the Extradition Treaties Between the
Government of the United States of America and the Governments
of Six Countries Comprising the Organization of Eastern
Caribbean States (Collectively, the ``Treaties''). The Treaties
are with: Antigua and Barbuda, signed at St. John's on June 3,
1996; Dominica, signed at Roseau on October 10, 1996; Grenada,
signed at St. George's on May 30, 1996; St. Lucia, signed at
Castries on April 18, 1996; St. Kitts and Nevis, signed
at Basseterre on September 18, 1996; and St. Vincent and the
Grenadines, signed at Kingstown on August 15, 1996 (Treaty Doc.
105-19); Extradition Treaty Between the Government of the
United States of America and the Government of Barbados, signed
at Bridgetown on February 28, 1996 (Treaty Doc. 105-20); the
Extradition Treaty Between the Government of the United States
of America and the Government of Trinidad and Tobago, signed at
Port of Spain on March 4, 1996 (Treaty Doc. 105-21); the
Extradition Treaty Between the Government of the United States
of America and the Government of the Republic of India, signed
at Washington on June 25, 1997 (Treaty Doc. 105-30); the
Extradition Treaty Between the Government of the United States
of America and the Government of the Republic of Zimbabwe,
signed at Harare on July 25, 1997 (Treaty Doc. 105-33); the
Protocol to the Extradition Treaty Between the United States of
America and the United Mexican States of May 4, 1978, signed at
Washington on November 13, 1997 (Treaty Doc. 105-46); and the
Extradition Treaty Between the Government of the United States
of America and the Government of the Republic of Austria,
signed at Washington on January 8, 1998 (Treaty Doc. 105-50),
having considered the same, reports favorably thereon, each
with one understanding, one declaration and one proviso,
(except two Protocols with one declaration and 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 resolutions of ratification.
CONTENTS
Page
I. Purpose..........................................................2
II. Background.......................................................2
III. Summary..........................................................3
IV. Entry Into Force and Termination.................................6
V. Committee Action.................................................6
VI. Committee Comments...............................................6
VII. Explanation of Proposed Treaties.................................9
VIII.Text of Resolutions of Ratification............................200
I. Purpose
These Treaties obligate the Parties to extradite fugitives
at the request of a Party subject to conditions set forth in
the treaties.
II. Background
The United States is a party to more than 100 bilateral
extradition treaties. Of the 13 extradition treaties considered
in this report, only the treaty with Zimbabwe represents a new
treaty relationship. Ten of the treaties with the Caribbean
countries, India, and Cyprus replace 1931 or 1972 Treaties
between the United States and the United Kingdom, which
continued to apply to these countries even after their
independence. The other treaties modernize older treaties to
ensure that all criminal acts punishable in both countries by
more than one year in prison are covered by the treaties. Two
of the treaties--those with Spain and Mexico--are Protocols to
existing treaties.
Extradition relationships have long been a basis of
bilateral relationships, and represent a recognition by the
United States of the legitimacy of a country's judicial system.
Respect for a treaty partner's judicial system is essential
since the treaties permit the transfer of individuals to
another country in order to stand trial for alleged crimes. The
treaty with Zimbabwe, therefore, signals an important
advancement in the U.S. relationship with that country.
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 certain crimes against, or are fugitives from, the
Requesting State.
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. 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.
The importance of extradition treaties as a tool for law
enforcement is reflected in the increase in the number of
extraditions of individuals under treaties. Since September
l997, 185 persons were extradited to the United States for
prosecution for crimes committed in the United States, and the
United States extradited 73 individuals to other countries for
prosecution.
In the United States, the legal procedures for extradition
are governed by both federal statute and self-executing
treaties. Federal statute controls the judicial process for
making a determination to the Secretary of State that she may
extradite an individual under an existing treaty. Courts have
held that the following elements must exist in order for a
court to find that the Secretary of State may extradite: (1)
the existence of a treaty enumerating crimes with which a
defendant is charged; (2) charges for which extradition is
sought are actually pending against the defendant in the
requesting nation and are extraditable under the treaty; (3)
the defendant is the same individual sought for trial in the
requesting nation; (4) probable cause exists to believe that
the defendant is guilty of charges pending against him in the
requesting nation; and (5) the acts alleged to have been
committed by the defendant are punishable as criminal conduct
in the requesting nation and under the criminal law of the
United States.
Once a court has made a determination that an individual
may be extradited under U.S. law, and so certifies to the
Secretary of State, she may still refrain from extraditing an
individual on foreign policy grounds, as defined in the
treaties themselves (or even absent express treaty provisions).
b. key provisions
1. Extraditable Offenses: The Dual Criminality Clause
Each of the extradition treaties 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 more than (or at least) one
year. Attempts and conspiracies to commit such offenses, and
participation in the commission of such offenses, are also
extraditable. In many of the treaties, if the extradition
request involves a fugitive, it shall be granted only if the
remaining sentence to be served is more than six months.
With minor variations, this definition of an extraditable
offense appears in each of the treaties under consideration.
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
A separate question arises as to whether offenses committed
outside the territory of the Requesting State are extraditable
under the treaties. To be able to extradite individuals for
extraterritorial crimes can be an important weapon in the fight
against international drug traffickers and terrorists. Only
three of the pending treaties (Austria, India, and Luxembourg)
permit extradition regardless of where the offense is
committed. However the rest permit extradition for
extraterritorial crimes if extradition would be permitted in
both the Requesting and Receiving State. Even if both States do
not permit extradition in those instances, extradition for
crimes committed outside both territories remains a matter of
discretion in most of the treaties.
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
under consideration take a narrower view than others of the
political offense exception, all of them give it a more limited
scope than earlier U.S. extradition treaties.
The exclusion of certain violent crimes, (i.e. murder,
kidnaping, and others) from the political offense exception
reflects 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 each of the treaties under
consideration.
The multilateral international agreement exception clause
serves to incorporate by reference certain multilateral
agreements to which the United States is a party and which deal
with international law enforcement in drug dealing, terrorism,
airplane hijacking and smuggling of nuclear material. These
agreements require that the offenses with which they deal shall
be extraditable under any extradition treaty between countries
that are parties to the multilateral agreements. 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.
It should perhaps be noted that the incorporation by
reference of multilateral international agreements that deal
with international law enforcement can have significance only
if the parties to an extradition treaty are also parties to
such multilateral agreements.
4. The Death Penalty Exception
The United States and other countries often have different
views on capital punishment, though some countries do impose
the death penalty for certain crimes, such as drug trafficking.
Most of the treaties under consideration permit the countries
to 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. The treaties under consideration take
varying positions on the nationality issue.
6. Retroactivity
Each of the treaties states that it shall apply to offenses
committed before as well as after it enters into force. 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. The treaties include language reflecting the basic
prohibition as well as clauses setting forth certain
exceptions. With minor variations, the treaties express the
basic prohibition and also include the following exceptions: an
extradited individual may be tried by the Requesting State for
an offense other than the one for which he was extradited if
the Requested State (which may request the submission of
additional supporting documents) waives the prohibition; the
extradited individual leaves the territory of the Requesting
State and voluntarily returns to it; the extradited individual
does not leave the territory of the Requesting State within a
limited period of time on which he or she is free to leave; or,
the extradited individual voluntarily consents to being tried
for an offense other than the one for which he was extradited.
These exceptions to the speciality rule 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
Some of the treaties include rules that preclude
extradition of offenses barred by an applicable statute of
limitations.
IV. Entry Into Force and Termination
a. entry into force
The Treaties generally provide for the entry into force of
the treaty either on the date of, or a short time after, the
exchange of instruments of ratification.
b. termination
The Treaties generally provide for the Parties to withdraw
from the Treaty by means of written notice to the other Party.
Termination would take place six months after the date of
notification.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed Treaties on September 15, 1998. The Committee
considered the proposed Treaties on October 14, 1998, and
ordered the proposed Treaties favorably reported, with the
recommendation that the Senate give its advice and consent to
the ratification of each of the proposed Treaties subject to
one understanding, one declaration, and two provisos (except
two Protocols with one declaration and one proviso).
VI. Committee Comments
The Committee on Foreign Relations recommends favorably the
proposed Treaties. On balance, the Committee believes that the
proposed Treaties are in the interest of the United States and
urges the Senate to act promptly to give its advice and consent
to ratification. Several issues did arise in the course of the
Committee's consideration of the Treaties, and the Committee
believes that the following comments may be useful to the
Senate in its consideration of the proposed Treaties and to the
State Department.
a. restriction on transfer of extraditees to international criminal
court
On July 17, 1998 a majority of nations at the U.N.
Diplomatic Conference in Rome, Italy, on the Establishment of
an International Criminal Court voted 120-7, with 21
abstentions, in favor of a treaty that would establish an
international criminal court. The court is empowered to
investigate and prosecute war crimes, crimes against humanity,
genocide and aggression. The United States voted against the
treaty.
Each of the Resolutions of Ratification accompanying the
Extradition Treaties contains an understanding relative to the
international court. Specifically, regarding the ``Rule of
Specialty'' the United States shall restate in its instrument
of ratification its understanding of the provision, which
requires that the United States consent to any retransfer of
persons extradited to the Treaty Partner to a third
jurisdiction. The understanding further states that future
United States policy shall be to refuse such consent to the
transfer of individuals to the International Criminal Court.
This restriction is binding on the President, and would be
vitiated only in the event that the United States ratifies the
treaty establishing the court, pursuant to the Constitutional
procedures as contained in Article II, section 2 of the United
States Constitution.
This provision makes clear that both Parties understand
that individuals extradited to the other Party may not be
transferred to the international court. Members of the
Committee are concerned that these treaties could become
conduits for transferring suspects located in the United States
to the international criminal court, even though the United
States has rejected the court.
b. use of treaties to aggressively pursue international parental
kidnaping
On October 1, 1998, the Committee on Foreign Relations
convened a hearing to consider U.S. Responses to International
Parental Kidnaping. The Attorney General, Janet Reno, testified
before the Committee, as did four parents whose children were
abducted or wrongfully detained in international jurisdictions.
The parents recounted their frustration with the current level
of U.S. Government assistance in seeking the return of their
children.
Although the Attorney General pointed to limitations in the
ability of the U.S. Government to resolve many cases of
international parental abduction, she also recognized that the
United States could do better in assisting in the return of
abducted children and pledged to take steps to improve
coordination between the Departments of State and Justice. She
also indicated that an interagency working group, which has
been studying this issue during the past year, will produce a
report in January with recommendations for improvements in U.S.
policy regarding international parental kidnaping.
As this working group completes its work, the Committee
expects that one area related to these treaties that the
working group should comment upon is the current practice of
extradition of parental kidnappers. Under current practice the
United States does not seek extradition if they do not think
that a country will extradite--whether because a country does
not have an extradition treaty with the United States, does not
extradite its nationals, or would simply be unlikely to
extradite under the circumstances. The Committee believes that
failure to even request extradition may create the
misperception that the United States is not interested in
pursuing such individuals.
The State and Justice Departments have testified that these
treaties are essential in order to ensure that no individual is
able to evade the justice system by travel to a foreign
country. This same principle should be true of parents who take
their children from the United States in violation of the 1993
International Parental Kidnaping Act. The Committee expects,
therefore, that State and Justice Department officials will
seek extradition unless it will hinder U.S. law enforcement
efforts. The Committee also expects that State and Justice
Department officials will raise this issue in the course of
negotiation of all bilateral law enforcement treaties and in
other bilateral diplomatic exchanges. The Committee
anticipates, also, that this issue will be given great scrutiny
in the issuance of passports, with a special eye towards
passport or visa fraud.
c. extradition of nationals
The treaties with Antigua and Barbuda, Argentina, Barbados,
Dominica, Grenada, India, St. Kitts and Nevis, St. Lucia, St.
Vincent and the Grenadines, Trinidad and Tobago, and Zimbabwe
require the extradition of their nationals. Such provisions
reflect an important trend in extradition relationships,
particularly with countries in the Western Hemisphere. The
Committee applauds this progress by State and Justice
Department negotiators.
Unfortunately, such progress has been much more difficult
for the United States to achieve in agreements with European
allies. Although the treaties with Austria, Cyprus, Luxembourg,
and Poland give each party the discretion to extradite its
nationals, each of these countries is prohibited by statute or
constitution from doing so. The treaty with France prohibits
extradition of nationals outright.
The Committee supports the extradition of U.S. nationals in
most instances. Criminal suspects should not be given safe
haven in this country. The alternative--trying them in this
country--is often not a realistic option, for two reasons.
First, U.S. courts often lack jurisdiction over the crime,
because not many crimes are subject to extraterritorial
jurisdiction under U.S. law. Second, prosecuting such cases in
the United States is often extremely difficult, particularly
when the evidence and many of the witnesses are not located in
this country, as would often be the case.
The Committee is deeply concerned that many nations around
the world, particularly those in Europe, do not agree to
extradite their own nationals to the United States. The
Committee expects that U.S. negotiators will continue to press
other nations to agree to extradite their nationals, including
in existing treaty relationships. The Committee urges the
Executive Branch to emphasize, in discussing new extradition
relationships with foreign states, that a reciprocal duty to
extradite nationals is a key U.S. negotiating objective.
In addition, the United States could request extradition of
nationals in some circumstances. In response to a question for
the record, the State Department indicated that it might
request extradition of nationals in an effort to encourage the
country to exercise discretion available under its domestic
law. The Committee anticipates that the United States will err
on the side of making requests, unless U.S. law enforcement
efforts would be compromised, in order to continue to force
treaty partners to respond to U.S. requests for extradition of
nationals.
d. extradition treaty with india
The Committee believes that special concerns are raised in
the Extradition Treaty with India, as evidenced by an exchange
of letters accompanying the Treaty (See Treaty Doc. 105-30, at
pages 18-19). The concern arises because when the treaty was
under negotiation, India had in effect a special law, the
Terrorist and Disruptive (Prevention) Act, which, according to
the Department of State, ``limited the rights of a defendant
accorded under ordinary Indian criminal law in a number of
important respects.'' The limits on a defendant's rights
included permitting detention for a year without charge, trial
proceedings in camera, permitting the court to keep secret the
identity of witnesses, reversing the burden of proof in certain
situations, and limiting the right to appeal. The Act lapsed on
May 23, 1995, and has not been replaced, but it continues to
have effect with respect to cases under investigation and trial
as of that date.
In an exchange of letters signed the same day as the
Extradition Treaty, the United States and India agreed to an
understanding that, as a general matter, persons extradited
under the treaty will be prosecuted or punished under the
ordinary criminal laws of the Requesting State. The Parties
further agreed that if either party is considering prosecution
or punishment under other laws, the ``Requesting State shall
request consultations and shall make such a request only upon
the agreement of the Requested State.''
During the hearing before the Committee, Deputy Legal
Adviser Jamison Borek testified that there would be a
``presumption'' against extraditing a criminal suspect in the
event that a request is made by India under this act or any
similar law. In response to a question for the record, the
Executive Branch indicated that while it could not ``rule out
the possibility that a [such a request] might merit serious
consideration'' it did not anticipate being presented with such
a case, at least based on information currently available.
It is evident from a brief review of the limitations set
forth in Terrorist and Disruptive (Prevention) Act that many of
its provisions do not accord with basic due process rights that
are central to American notions of justice and fundamental
fairness. It is difficult to envision a case that would warrant
extradition under such circumstances. Accordingly, the
Committee expects that it will be the rare case--a matter of
the gravest consequence--in which extradition would be granted
by the United States in matters that may be prosecuted under
this or a similar law.
VII. Explanations of Proposed Treaties
The following are the article-by-article technical analyses
provided by the Departments of State and Justice regarding the
extradition treaties.
Technical Analysis of the Extradition Treaty Between the United States
of America and Antigua and Barbuda
On June 3, 1996, the United States signed a treaty on
extradition with Antigua and Barbuda (hereinafter ``the
Treaty''), which is intended to replace the outdated treaty
currently in force between the two countries \1\ with a modern
agreement on the extradition of fugitives. The new extradition
treaty is one of twelve treaties that the United States
negotiated under the auspices of the Organization of Eastern
Caribbean States to modernize our law enforcement relations in
the Eastern Caribbean. It represents a major step forward in
the United States' efforts to strengthen cooperation with
countries in the region in combating organized crime,
transnational terrorism, and international drug trafficking.
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 for the United States.
Antigua and Barbuda has its own internal legislation on
extradition, \2\ which will apply to United States' requests
under the treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
The first article of the Treaty, like the first article in
every recent United States extradition treaty, formally
obligates each Party to extradite to the other persons sought
for prosecution or convicted of an extraditable offense,
subject to the provisions of the remainder of the Treaty. The
article refers to charges ``in'' the Requesting State rather
than ``of'' the Requesting State, since the obligation to
extradite, in cases arising from the United States, would
include state and local prosecutions as well as federal cases.
It was agreed that the term ``convicted'' includes instances in
which the person has been found guilty but a sentence has not
yet been imposed. \3\ The negotiators intended to make it clear
that the Treaty applies to persons adjudged guilty who flee
prior to sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what offenses are extraditable. This Treaty, like most recent
United States extradition treaties, including those with
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden
(Supplementary Convention), and Costa Rica, does not list the
offenses for which extradition may be granted. Instead,
paragraph 1 of the article permits extradition for any offense
punishable under the laws of both countries 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 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
a criminal activity punishable in both countries.
During the negotiations, the United States delegation
received assurances from the Antigua and Barbuda delegation
that extradition would be possible for such high priority
offenses as drug trafficking (including operating a continuing
criminal enterprise, in violation of Title 21, United States
Code, Section 848); offenses under the racketeering statutes
(Title 18, United States Code, Section 1961--1968), if the
predicate offense would be an extraditable offense; money
laundering; terrorism; crimes against environmental protection
laws; and antitrust violations punishable in both states by
more than one year of imprisonment.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting or conspiring to commit, aiding or abetting,
counseling or procuring the commission of, or otherwise being
an accessory before or after the fact to, an extraditable
offense. 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. Antigua and Barbuda has
no general conspiracy statute like Title 18, United States
Code, Section 371. Therefore, paragraph 2 creates an exception
to the ``dual criminality'' rule of paragraph 1 by making
conspiracy an extraditable crime if the offense which was the
object of the conspiracy is an extraditable offense.
Paragraph 3 reflects the intention of both countries to
interpret the principles of this article broadly. 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 the 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 be disregarded in
applying the dual criminality principle. For example, Antigua
and Barbuda authorities must treat United States mail fraud
charges (Title 18, United States Code, Section 1341) in the
same manner as fraud charges under state laws, and view the
federal crime of interstate transportation of stolen property
(Title 18, United States Code, Section 2314) 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
country. A similar provision is contained in all recent United
States extradition treaties.
Paragraph 4 deals with the fact that many federal crimes
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes jurisdiction in our courts to
prosecute 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. \4\ In
Antigua and Barbuda, however, the Government's ability to
prosecute extraterritorial offenses is much more limited.
Therefore, Article 2(4) reflects Antigua and Barbuda's
agreement to recognize United States jurisdiction to prosecute
offenses committed outside of the United States if Antigua and
Barbuda's law would permit it to prosecute similar offenses
committed outside of it in corresponding circumstances. If the
Requested State's laws do not so provide, the final sentence of
the paragraph states that extradition may be granted, but the
executive authority of the Requested State has the discretion
to deny the request.
Paragraph 5 states 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
have been met except for the requirement that the offense be
punishable by more than one year of imprisonment. For example,
if Antigua and Barbuda 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 that have been charged, as long as
those misdemeanors would also be recognized as criminal
offenses in Antigua and Barbuda. 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
extraditable 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 countries such as Australia, Ireland,
Italy, and Costa Rica.
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served. This
Treaty, like most U.S. extradition treaties in the past two
decades, contains no such requirement. \5\ Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Nationality
Some countries refuse to extradite their own nationals to
other countries for trial or punishment, or are prohibited from
doing so by their statutes or constitution. The United States
does not deny extradition on the basis of the offender's
citizenship, \6\ and the Antigua and Barbuda extradition law
contains no exception for Antiguan nationals. Therefore,
Article 3 of the Treaty provides that extradition is not to be
refused based on the nationality of the person sought.
Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in United
States extradition treaties. \7\
Paragraph 2 describes three categories of offenses which
shall not be considered to be political offenses.
First, the political offense exception does not apply where
there is a murder or other willful crime against the person of
a Head of State of the Contracting States, or a member of the
Head of State's family.
Second, the political offense exception does not apply to
offenses that are included in a multilateral treaty,
convention, or international agreement that requires the
parties to either extradite the person sought or submit the
matter for prosecution, such as the United Nations Convention
Against the Illicit Traffic in Narcotic Drugs and Psychotropic
Substances. \8\
Third, the political offense exception does not apply to
conspiring or attempting to commit, or to aiding and abetting
the commission or attempted commission of the foregoing
offenses.
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State finds that
the request was politically motivated. \9\ This is consistent
with the long-standing law and practice of the United States,
under which the Secretary of State alone has the discretion to
determine whether an extradition request is based on improper
political motivation. \10\
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law. \11\
Article 5--Prior Prosecution
This article will permit extradition in situations in which
the fugitive is charged in each country with different offenses
arising out of the same basic transaction.
The first paragraph prohibits extradition if the offender
has been convicted or acquitted in the Requested State for the
offense for which extradition is requested, and is similar to
language present in many United States extradition treaties.
\12\ The parties agreed that this provision applies only if the
offender is convicted or acquitted in the Requested State of
exactly the same crime he is charged with in the Requesting
State. It would not be enough that the same facts were
involved. Thus, if an offender is accused in one State of
illegally smuggling narcotics into the country, and is charged
in the other State of unlawfully exporting the same shipment of
drugs out of that State, an acquittal or conviction in one
state would not insulate the person from extradition to the
other, since different crimes are involved.
Paragraph 2 makes it clear that neither State can refuse to
extradite an offender 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, could result
from failure to obtain sufficient evidence or witnesses
available for trial, whereas the Requesting State might not
suffer from the same impediments. This provision should enhance
the ability to extradite to the jurisdiction which has the
better chance of a successful prosecution.
Article 6--Extradition Procedures and Required Documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is generally
similar to corresponding articles in the United States' most
recent extradition treaties.
The first paragraph requires that each formal request for
extradition be submitted through the diplomatic channel. A
formal extradition request may be preceded by a request for
provisional arrest under Article 9, and provisional arrest
requests need not be initiated through diplomatic channels if
the requirements of Article 9 are met.
Paragraph 2 outlines the information which must accompany
every request for extradition under the Treaty. Most of the
items listed in this paragraph enable the Requested State to
determine quickly whether extradition is appropriate under the
Treaty. For example, Article 6(2)(c)(i) calls for ``information
as to the provisions of the law describing the essential
elements of the offense for which extradition is requested,''
enabling the requested state to determine easily whether the
request satisfies the requirement for dual criminality under
Article 2. Some of the items listed in paragraph 2, however,
are required strictly for informational purposes. Thus, Article
6(2)(c)(iii) calls for ``information as to the provisions of
law describing any time limit on the prosecution,'' even though
Article 8 of the Treaty expressly states that extradition may
not be denied due to lapse of time for prosecution. The United
States and Antigua and Barbuda delegations agreed that Article
6(2)(c)(iii) should require this information so that the
Requested State would be fully informed about the charges in
the Requesting State.
Paragraph 3 describes the additional information required
when the person is sought for trial in the Requesting State.
Paragraph 3(c) requires that if the fugitive is a person who
has not yet been convicted of the crime for which extradition
is requested, the Requesting State must provide ``such
information as would provide a reasonable basis to believe that
the person sought committed the offense for which extradition
is requested.'' This provision will alleviate one of the major
practical problems with extradition from Antigua and Barbuda.
The Treaty currently in force permits extradition only if ``. .
.the evidence be found sufficient, according to the laws of the
High Contracting Party applied to, either to justify the
committal of the prisoner for trial, in the case the crime or
offense had been committed in the territory of such High
Contracting party, or to prove that the person is the identical
person convicted by the courts of the High Contracting Party
who makes the requisition . . .''. \13\ Antigua and Barbuda's
courts have interpreted this clause to require that a prima
facie case against the defendant be shown before extradition
will be granted. \14\ By contrast, U.S. law permits extradition
if there is probable cause to believe that an extraditable
offense was committed and the offender committed it. \15\
Antigua and Barbuda's agreement to extradite under this new
Treaty on a ``reasonable basis'' standard eliminates this
imbalance on the burden of proof for extradition and should
dramatically improve the United States' ability to extradite
from Antigua and Barbuda.
Paragraph 4 lists the information required to extradite a
person who has already been convicted 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. \16\
Article 7--Admissibility of Documents
Article 7 governs the authentication procedures for
documents prepared for use in extradition cases.
The article states that when the United States is the
Requesting State, the documents in support of extradition must
be authenticated by an officer of the United States Department
of State and certified by the principal diplomatic or consular
officer of Antigua and Barbuda resident in the United States.
This is intended to replace the cumbersome and complicated
procedures for authenticating extradition documents applicable
under the current treaty. \17\ When the request is from Antigua
and Barbuda, the documents must be certified by the principal
diplomatic or consular officer of the United States resident in
Barbados accredited to Antigua and Barbuda, pursuant to United
States extradition law. \18\
The third subparagraph of the article permits documents to
be admitted into evidence if they are authenticated in any
other manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition, and the
Requested State is free under subsection (c) to utilize that
information if the information satisfies the ordinary rules of
evidence in that state. This ensures that evidence which is
acceptable under the evidentiary rules of the Requested State
may be used in extradition proceedings even if it is not
otherwise authenticated pursuant to the treaty. This paragraph
also should ensure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing merely because of an
inadvertent error or omission in the authentication process.
Article 8--Lapse of Time
Article 8 states that the decision to deny an extradition
request must be made without regard to provisions of the law
regarding lapse of time in either the requesting or requested
states. \19\ The U.S. and Antiguan delegations agreed that a
claim that the statute of limitations has expired is best
resolved by the courts of the Requesting State after the
fugitive has been extradited.
Article 9--Provisional Arrest
This article describes the process by which a person in one
country may be arrested and detained while the formal
extradition papers are being prepared by the Requesting State.
\20\
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
the Attorney General in Antigua and Barbuda. The provision also
indicates that INTERPOL may be used to transmit such a request.
Paragraph 2 states the information which the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must be
advised promptly of the outcome of its application and the
reason for any denial.
Paragraph 4 provides that the provisional arrest be
terminated if the Requesting State does not file a fully
documented request for extradition within forty-five days of
the date on which the person was arrested. This period may be
extended for up to an additional fifteen days. When the United
States is the Requested State, it is sufficient for purposes of
this paragraph if the documents are received by the Secretary
of State or the U.S. Embassy in Bridgetown, Barbados. \21\
Paragraph 5 makes it clear that in such cases the person
may be taken into custody again and the extradition proceedings
may commence if the formal request is presented subsequently.
Article 10--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
in whole or in part, the Requested State must provide an
explanation of the reasons for the denial. If extradition is
granted, the article provides that the two States shall 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 for the same offense. United States law currently
permits the person to request release if he has not been
surrendered within two calendar months of having been found
extraditable, \22\ or of the conclusion of any litigation
challenging that finding, \23\ whichever is later. The law in
Antigua and Barbuda permits the person to apply to a judge for
release if he has not been surrendered within two months of the
first day on which he could have been extradited. \24\
Article 11--Deferred and Temporary Surrender
Occasionally, a person sought for extradition may already
be facing prosecution or serving a sentence on other charges in
the Requested State. Article 11 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 that may have been
imposed.
Paragraph 1 provides for the temporary surrender of a
person wanted 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
provision will be 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 successful prosecution. Such transfer may
also be advantageous to the person sought in that: (1) it
allows him to resolve the charges sooner; (2) subject to the
laws in each state, it may make it possible for him to serve
any sentence in the Requesting State concurrently with the
sentence in the Requested State; and (3) it permits him to
defend against the charges while favorable evidence is fresh
and more likely to be available to him. Similar provisions are
found in many recent extradition treaties.
Paragraph 2 provides that the executive authority of the
Requested State may postpone the extradition proceedings
against a person who is serving a sentence in the Requested
State until the full execution of the punishment that has been
imposed. \25\ The provision's wording makes it clear that the
Requested State may also postpone the surrender of a person
facing prosecution or serving a sentence in that State, even if
all necessary extradition proceedings have been completed.
Article 12--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties and lists some of the factors which
the executive authority of the Requested State must consider in
determining to which country a person should be surrendered
when reviewing requests from two or more States for the
extradition of the same person. For the United States, the
Secretary of State would make this decision. \26\
Article 13--Seizure and Surrender of Property
This article provides that to the extent permitted by its
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other
evidence--relating to the offense for which extradition is
requested. \27\ The article also provides that these objects
shall be surrendered to the Requesting State upon the granting
of the extradition, or even if extradition cannot be effected
due to the death, disappearance, or escape of the fugitive.
Paragraph 2 states that the Requested State may condition
its surrender of property in such a way as to ensure that the
property is returned as soon as practicable. This paragraph
also permits the Requested State to defer surrender altogether
if the property is needed as evidence in the Requested State.
Paragraph 3 makes the surrender of property expressly
subject to due respect for the rights of third parties to such
property.
Article 14--Rule of Speciality
This article covers the principle known as the rule of
speciality, which is a standard aspect of United States
extradition practice. Designed to ensure that a fugitive
surrendered for one offense is not tried for other crimes, the
rule of speciality prevents a request for extradition from
being used as a subterfuge to obtain custody of a person for
trial or service of sentence on different charges which may not
be extraditable under the Treaty or properly documented at the
time that the request is granted.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, tried, or punished in the Requesting State for (1)
the offense for which extradition was granted, or a differently
denominated offense based on the same facts, provided the
offense is extraditable or is a lesser included offense; (2)
for offenses committed after the extradition; and (3) for other
offenses for which the executive authority of the Requested
State consents. \28\ Article 14(1)(c)(ii) permits the State
which is seeking consent to pursue new charges to detain the
defendant for 90 days while the Requested State makes its
determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third State for a crime committed
prior to his extradition under this Treaty, without the consent
of the State from which extradition was first obtained. \29\
Finally, paragraph 3 removes the restrictions of paragraphs
1 and 2 on the detention, trial, or punishment of an extraditee
for additional offenses, or extradition to a third State, (1)
if the extraditee leaves and returns to the Requesting State,
or (2) if the extraditee does not leave the Requesting State
within ten days of being free to do so.
Article 15--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings to expedite their return
to the Requesting State. This article provides that when a
fugitive consents to return to the Requesting State, the person
may be returned to the Requesting State without further
proceedings. The Parties anticipate that in such cases there
would be no need for the formal documents described in Article
6 or further judicial proceedings of any kind. \30\
If a person sought from the United States returns to the
Requesting State before the Secretary of State signs a
surrender warrant, the United States would not view the return
pursuant to a waiver of proceedings under this article as an
``extradition.'' United States practice has long been that the
rule of speciality does not apply when a fugitive waives
extradition and voluntarily returns to the Requested State.
Article 16--Transit
Paragraph 1 gives each State the power to authorize transit
through its territory of persons being surrendered to the other
country by third countries. \31\ Requests for transit are to
contain a description of the person whose transit is proposed
and a brief statement of the facts of the case with respect to
which he is being surrendered to the Requesting State. The
paragraph permits the request to be transmitted either through
the diplomatic channel, or directly between the United States
Department of Justice and the Attorney General in Antigua and
Barbuda, or via INTERPOL channels. The negotiators agreed that
the diplomatic channels will be employed as much as possible
for requests of this nature. A person may be detained in
custody during the period of transit.
Paragraph 2 provides that no advance authorization is
needed if the person in custody is in transit to one of the
Parties and is traveling by aircraft and no landing is
scheduled in the territory of the other Party. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant such a
request. This paragraph also permits the transit State to
detain a fugitive and a request for transit as received and
executed, so long as the request is received within 96 hours of
the unscheduled landing.
Antigua and Barbuda does not appear to have specific
legislation on this matter, and the Antigua and Barbuda
delegation stated that its Government would seek implementing
legislation for this article in due course.
Article 17--Representation and Expenses
The first paragraph of this article provides that the
United States will represent Antigua and Barbuda in connection
with a request from Antigua and Barbuda for extradition before
the courts in this country, and that Antigua and Barbuda will
arrange for the representation of the United States in
connection with United States extradition requests to Antigua
and Barbuda.
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and the translation of documents, which expenses are to be paid
by the Requesting State. The negotiators agreed that in some
cases the Requested State might wish to retain private counsel
to assist it in the presentation of the extradition request.
The Attorney General of Antigua and Barbuda has a very small
staff, and might need to enlist outside counsel to aid in
handling a complex, contested international extradition
proceeding. It is anticipated that in such cases the fees of
private counsel retained by the Requested State would be paid
by the Requested State. The negotiators also recognized that
cases might arise in which the Requesting State would wish to
retain its own private counsel to advise it on extradition
matters or even assist in presenting the case, if the Requested
State agrees. In such cases the fees of private counsel
retained by the Requesting State must be paid by the Requesting
State.
Paragraph 3 provides that neither State shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, or surrender of the fugitive. This includes any
claim by the fugitive for damages, reimbursement, or legal
fees, or other expenses occasioned by the execution of the
extradition request.
Article 18--Consultation
Article 18 of the treaty provides that the United States
Department of Justice and the Attorney General's Chambers in
Antigua and Barbuda may consult with each other with regard to
an individual extradition case or on extradition procedures in
general. A similar provision is found in other recent U.S.
extradition treaties. \32\
The article also states that consultations shall include
issues involving training and technical assistance. At the
request of Antigua and Barbuda, the United States delegation
promised to recommend training and technical assistance to
better educate and equip prosecutors and legal officials in
Antigua and Barbuda to implement this Treaty.
During the negotiations, the Antigua and Barbuda delegation
also expressed concern that the United States might invoke the
Treaty much more often than Antigua and Barbuda, resulting in
an imbalance in the financial obligations occasioned by
extradition proceedings. While no specific Treaty language was
adopted, the United States agreed that consultations between
the Parties under Article 18 could address extraordinary
expenses arising from the execution of individual extradition
requests or requests in general.
Article 19--Application
This Treaty, like most United States extradition treaties
negotiated in the past two decades, is expressly made
retroactive, and accordingly covers offenses that occurred
before the Treaty entered into force, provided that they were
offenses under the laws of both States at the time that they
were committed.
Article 20--Ratification and Entry Into Force
This article contains standard treaty language providing
for the exchange of instruments of ratification at Washington
D.C. The Treaty is to enter into force immediately upon the
exchange.
Paragraph 3 provides that the 1972 Treaty will cease to
have any effect upon the entry into force of the Treaty, but
extradition requests pending when the Treaty enters into force
will nevertheless be processed to conclusion under the 1972
Treaty. Nonetheless, Article 15 (waiver of extradition) of this
Treaty will apply in such proceedings, and Article 14 (rule of
speciality) also applies to persons found extraditable under
the prior Treaty.
Article 21--Termination
This Article contains standard treaty language on the
procedure for terminating the Treaty. Termination shall become
effective six months after notice of termination is received.
The following are the article-by-article technical analysis
provided by the Departments of State and Justice regarding the
mutual legal assistance treaties.
Technical Analysis of the Extradition Treaty Between The United States
of America and the Argentine Republic signed June 10, 1997
On June 10, 1997, at Buenos Aires, Argentina, the United
States signed a new extradition treaty with Argentina
(hereinafter ``the new Treaty,'' ``the Treaty,'' or ``this
Treaty''). In recent years, the United States has signed
similar treaties with many other countries, as part of an
ongoing and highly successful effort to modernize our
international law enforcement relations. The new Treaty will
replace the treaty currently in force between the United States
and Argentina \33\ (hereinafter ``the 1972 treaty'') with a
modern agreement to facilitate the extradition of serious
offenders, including narcotics traffickers, regardless of their
nationality.
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.
With regard to Argentina, once the Treaty is approved by
the Argentine Congress, a law published in the ``Official
Bulletin'' will render the Treaty applicable under Argentine
law and subject to implementation upon completion of the
Treaty's requirements for entry into force (i.e., exchange of
instruments of ratification). No additional or special
legislation will be required in Argentina for implementation of
the Treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
Article 1 of the Treaty, 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 ``found guilty'' of an extraditable offense.
The negotiating delegations intended that the term
``charged with'' be interpreted broadly to include those
persons who, being the subject of an outstanding warrant of
arrest in the Requesting State, are sought for prosecution.
Accordingly, for fugitives from the United States, this
provision is intended to apply to those persons for whom a
warrant of arrest has been issued, whether the warrant was
issued pursuant to an indictment, complaint, information, or
other means. In addition, under Argentine criminal procedure, a
person may not be formally indicted until after he is in
custody and brought before a judge in Argentina. Therefore,
this provision is also intended to apply to those fugitives
from Argentina whose cases may not yet have reached the
indictment stage, but for whom there are pending criminal
proceedings and outstanding warrants of arrest. \34\
It also was agreed by the negotiating delegations that the
term ``found guilty'' in this Article includes instances in
which the person has been convicted, either by trial or guilty
plea, but a sentence has not yet been imposed. Accordingly, the
negotiators intended to make it clear that the Treaty applies
not only to charged and sentenced persons, but also to persons
adjudged guilty who flee prior to sentencing. \35\
This Article also refers to offenses ``in'' the Requesting
State rather than ``of'' the Requesting State, since the
obligation to extradite, in cases arising from the United
States, would include state and local prosecutions as well as
federal cases.
Article 2--Extraditable Offenses
This Article contains the basic guidelines for determining
what offenses are extraditable. This Treaty, like other recent
United States extradition treaties, \36\ does not list the
offenses for which extradition may be granted. Instead,
paragraph 1 of this Article permits extradition for any offense
punishable under the laws in both countries 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, in regard to offenses whose potential
penalties are described in terms of a range (e.g. 6 months to 3
years of imprisonment), the Requested State would look only to
the maximum potential penalty in determining whether the
offense meets the requirement of being punishable by ``more
than one year'' imprisonment.
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, at this time, Argentine law
criminalizes money laundering only as it relates to narcotics
trafficking. However, once laws are enacted in Argentina, like
those in the United States, to cover the laundering of proceeds
from other types of criminal activity, such offenses will
automatically be included as extraditable offenses under the
dual criminality provision without having to amend the Treaty.
During the negotiations, the Argentine delegation indicated
that key offenses such as drug trafficking and related money
laundering and organized criminal activity (RICO) would be
extraditable.
In regard to a request for a person who has already been
sentenced in the Requesting State, paragraph 1 of this Article
contains an additional requirement that such person must have
more than six months of his or her sentence still to serve.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition shall also be granted
for attempting or conspiring to commit, or otherwise
participating in, the commission of an extraditable offense.
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. For the same reasons,
the negotiating delegations agreed that ``illicit
association'', which is the closest analogue to conspiracy
under Argentine law, should also be expressly included as an
extraditable offense. \37\ Accordingly, paragraph 2(b)
specifies that the offense of conspiracy, as defined under
United States law, and the offense of illicit association, as
defined under Argentine law, shall be extraditable.
Paragraph 3 reflects the intention of both countries to
interpret the principles of this Article broadly. Paragraph
3(a) requires the 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 in each
country. Provisions similar to paragraph 3(a) are contained in
many recent United States extradition treaties. \38\
Paragraph 3(b) is also included to further prevent
technical differences in Argentine and United States law from
creating obstacles to extradition. 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 the United States federal courts. Because there
is no similar requirement in their own country's criminal law,
foreign judges occasionally have denied the extradition of U.S.
fugitives charged under these federal statutes on the basis of
lack of dual criminality. Therefore, paragraph 3(b) requires
that such elements be disregarded in applying the dual
criminality principle. For example, Argentine authorities must
treat United States mail fraud charges (Title 18, United States
Code, Section 1341) in the same manner as fraud charges under
state laws, and view the federal crime of interstate
transportation of stolen property (Title 18, United States
Code, Section 2314) in the same manner as unlawful possession
of stolen property.
Paragraph 4 ensures that extradition shall be granted for
offenses even when the illegal acts constituting the offense
are committed outside the territory of the Requesting State.
United States jurisprudence recognizes jurisdiction in our
courts to prosecute 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 extraterritorial
jurisdiction. \39\ Accordingly, many federal statutes
(including drug laws) criminalize acts committed wholly outside
United States territory, and it was very important to the U.S.
negotiating delegation that such offenses be extraditable. The
United States initially proposed language for this provision
stating that extradition shall be granted for an extraditable
offense regardless of where the act or acts constituting the
offense were committed. \40\ During the negotiations, no U.S.
proposal received more vehement opposition from the Argentine
delegation, but the U.S. delegation was able to persuade the
Argentine delegation to accept an alternative formulation. This
alternative formulation, set forth in paragraph 4, not only
provides for extradition for offenses committed in whole or in
part in the territory of the Requesting State, but also for
offenses committed outside the territory of the Requesting
State if the offenses have effects in the territory of the
Requesting State. \41\ In addition, paragraph 4 provides for
the extraditability of extraterritorial offenses based on other
theories of jurisdiction, provided that the laws of the
Requested State would recognize jurisdiction over such an
offense under similar circumstances. Accordingly, paragraph 4
will greatly improve the ability of the United States to obtain
extradition for a great number of offenses, including narcotics
trafficking and terrorism, which frequently are initiated or
orchestrated from abroad.
Paragraph 5 provides that when extradition has been granted
for an extraditable offense, it shall also be granted for other
less serious offenses with which the person is charged, but
which, standing alone, would not be extraditable for the sole
reason that they are not punishable by more than one year of
imprisonment. Thus, if Argentina 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 that have been charged
and specified in the request, so long as those misdemeanors
would also be recognized as criminal offenses in Argentina, and
all other requirements of the Treaty (except the minimum
penalty requirement of Article 2(1)) are met. This provision,
which is consistent with recent United States extradition
practice, is generally desirable from the standpoint of both
the fugitive and the prosecuting country. It permits all
charges against the fugitive to be disposed of more quickly and
efficiently, by facilitating either plea agreements, when
appropriate, or trials while evidence is still fresh, and by
permitting the possibility of concurrent sentences. Similar
provisions are found in many recent United States extradition
treaties. \42\
Article 3--Nationality
Article 3 provides that extradition and surrender shall not
be refused on the ground that the person sought is a national
of the Requested Party.
Although Argentina has no constitutional provision or
statute which expressly prohibits the extradition of Argentine
nationals, in our experience, securing the extradition of
Argentine citizens from Argentina has been extremely difficult.
The 1972 treaty does not mandate the extradition of nationals,
and, in the absence of such an affirmative obligation to do so,
Argentine courts have interpreted Argentine law to allow
Argentine citizens who have been found extraditable to the
United States to choose whether they wish to be extradited or,
in the alternative, to stand trial in Argentina for the
offenses committed in the United States. It is the policy of
the United States to extradite its citizens for offenses
committed abroad. \43\
The Argentine delegation agreed to the U.S. proposal in
Article 3, which clearly provides for the mandatory extradition
of nationals with no restrictions or exceptions. \44\ This
provision will greatly improve the ability of the United States
to secure the extradition of Argentine citizens who violate
state or federal criminal laws in the United States and
thereafter seek haven in Argentina.
Article 4--Political and Military Offenses
Paragraph 1 of this Article contains a general rule that
prohibits extradition for political offenses. This principle is
commonly known as the ``political offense exception'' to
extradition. \45\
Notwithstanding the general rule in paragraph 1, paragraph
2 describes several categories of offenses that shall not be
considered to be political offenses. This is a common provision
in United States extradition treaties. \46\
First, paragraph 2(a) provides that the political offense
exception shall not apply to an attack or other willful crime
against the physical integrity of a Head of State of the United
States or Argentina or a member of their families. This is the
so-called ``attentat clause,'' which first began appearing in
extradition treaties in the early 1900s in order to preclude
lenient treatment of anarchists and assassins of Heads of
State. Recent U.S. treaties have broadened its coverage to
include attacks against a Head of State's family as well. The
phrase ``attack or other willful crime against the physical
integrity'' was used to limit this clause's coverage to violent
crimes.
Second, paragraph 2(b) states that the political offense
exception shall not apply to offenses for which both Parties
have, pursuant to a multilateral treaty, the obligation to
extradite or prosecute. This clause is included to ensure that
the political offense exception does not conflict with and
frustrate international obligations that the United States and
Argentina have undertaken, or will undertake, in other treaties
to ensure that persons accused of certain serious,
internationally recognized crimes are brought to justice.
Examples of conventions to which this clause would apply at
present include: the Convention on the Prevention and
Punishment of Crimes Against Internationally Protected Persons,
Including Diplomatic Agents; \47\ the International Convention
Against the Taking of Hostages; \48\ the Convention for the
Suppression of Unlawful Seizure of Aircraft (Hijacking); \49\
and the Convention for the Suppression of Unlawful Acts Against
the Safety of Civil Aviation (Sabotage). At the instance of the
Argentine delegation and to stress the seriousness of those
offenses, the delegations included specific reference to
treaties relating to genocide, acts of terrorism, and narcotics
trafficking.
Paragraph 4 of this Article states that the Requested State
may refuse extradition if the request relates to an offense
under military law which would not be an offense under ordinary
criminal law. \50\ This also is a common provision in United
States extradition treaties. \51\
Finally, paragraph 2, subparagraphs (c), (d), and (e),
states that the political offense exception shall not apply to
an attempt to commit, a conspiracy or illicit association to
commit, or participation in the commission of, the offenses in
subparagraphs (a) and (b).
Paragraph 3 states that extradition shall not be granted if
the competent authority of the Requested State determines that
the extradition request was politically motivated. This
provision applies when the offense for which extradition has
been requested does not fall within the definition of a
political offense, but it is shown that the foreign State's
extradition request is for the actual purpose of punishing the
person sought for political reasons. Under U.S. law and
practice, a claim that the extradition request was politically
motivated, unlike a claim involving the political offense
exception, falls outside the scope of judicial review and is
exclusively for the executive branch (i.e., the Secretary of
State) to consider and decide.
Article 5--Prior Prosecution
Paragraph 1 of this Article prohibits extradition if the
offender has been convicted or acquitted in the Requested State
for the offense for which extradition is requested, \52\ and
its language is similar to that contained in many United States
extradition treaties. \53\ This paragraph will permit
extradition in situations in which the activities of the
fugitive result in his being charged with different offenses in
both countries arising out of the same basic transaction. \54\
Paragraph 2 of this Article makes clear that extradition
shall not be precluded by the fact that the Requested State's
authorities declined to prosecute the person sought for the
same offense for which extradition is requested. Moreover,
paragraph 2 would permit extradition in situations in which the
Requested State instituted such criminal proceedings, but
thereafter elected to discontinue the proceedings, provided
that the laws of the Requested State regarding double jeopardy
would permit their future reinstitution.\55\ This provision
should enhance the ability to extradite criminals to the
jurisdiction which has the better chance of a successful
prosecution.
Article 6--Death Penalty
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 not
so punishable in the Requested State, unless the Requesting
State provides assurances that the person sought will not be
executed. The Argentine delegation insisted on this provision
because Argentina has abolished the death penalty and would not
sign a treaty that would obligate it to contravene its law and
policy against the death penalty. Similar provisions are found
in many recent United States extradition treaties. \56\
If Argentina ever re-establishes the death penalty, this
Article would not prevent the United States from securing
extradition for a capital offense provided that the offense is
subject to capital punishment in both States.
Article 7--Lapse of Time
This Article provides that extradition shall not be denied
on the basis that the prosecution or penalty would be barred
under the statute of limitations of the Requested State.
This Article embodies the U.S. preferred view that,
provided the other conditions of the Treaty are met,
extradition should not be barred on the technicality that the
time period established by the statute of limitations of the
Requested State has expired. Rather, this Article recognizes
that statutes of limitations, which may vary greatly between
different countries and jurisdictions, are procedural obstacles
to prosecution, often with complicated rules for their
interruption, and due deference should be given to the laws of
the Requesting State and its courts in determining whether the
time for prosecution or punishment has lapsed.
The 1972 treaty provides that extradition may be refused if
the statute of limitations of either the Requesting or
Requested State has expired. The new Treaty would require that
the Requesting State include in the documentation accompanying
extradition requests a statement that the statute of
limitations has not expired under the Requesting State's law.
The Requested State will be bound to accept such statement and,
moreover, will not be permitted to consider whether its own
statute of limitations would have run. It is expected that this
will prevent extradition from being refused in cases where the
Requested State's statute of limitations is shorter than that
in the Requesting State, or where the two States' rules
regarding the tolling (suspension) of the statute of
limitations are different.
Article 8--Extradition Procedures 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.
Basically, this Article contains similar provisions to
corresponding articles in the United States' most recent
extradition treaties. \57\
Paragraph 1 of this Article requires that all requests for
extradition be submitted in writing through the diplomatic
channel. Paragraph 2 outlines the information that must
accompany every request for extradition under the Treaty.
Paragraph 3 describes the information needed, in addition to
the requirements of paragraph 2, when the person is sought for
prosecution 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 convicted
in the Requesting State.
Most of the items listed in paragraph 2 enable the
authorities of the Requested State to determine quickly whether
extradition is appropriate under the Treaty. For example, the
``summary of the facts of the offense'' and ``the text of the
law or laws describing the offense for which extradition is
requested'' called for in paragraph 2(b) and (c) enable the
Requested State to make a preliminary determination whether
lack of dual criminality would be a basis for denying
extradition under Article 2. Other items, such as the physical
description and probable location of the fugitive required
under paragraph 2(a), assist the Requested State in locating
and apprehending the fugitive, and in proving his identity at
the extradition hearing.
Paragraph 2(d) requires the Requesting State to provide a
statement that neither the prosecution nor punishment of the
person sought is barred by the Requesting State's statute of
limitations. Because Article 7 of the Treaty precludes
consideration of the Requested State's statute of limitations
in the decision on extradition, this subparagraph was included
to provide a minimum degree of reassurance to the Requested
State that authorities in the Requesting State have reviewed
their own statute of limitations, and that such statute will
not bar prosecution or punishment once the fugitive is returned
to the Requesting State.
Paragraph 3 requires that if the fugitive is a person
sought for prosecution (i.e., pre-conviction), the Requesting
State must provide: (a) a copy of the warrant of arrest; (b) a
copy of the charging document, if any; \58\ and (c) ``such
information as would justify the detention of the person if the
offense had been committed in the Requested State.'' The
language in paragraph 3(c) is consistent with fundamental
extradition jurisprudence in the United States, in that it will
be interpreted to require that Argentina provide such
information as is necessary to establish ``probable cause'' to
believe that a crime was committed and the person sought
committed it.\59\ The Argentine delegation assured the United
States delegation that, under Argentine law, the evidentiary
standard for a court to order the ``detention'' of a person for
an alleged criminal offense in Argentina, and thus the standard
to be applied in Argentina to extradition requests under the
Treaty, is in fact very much akin to our probable cause
requirement.\60\
Paragraph 4 describes the information needed, in addition
to that required by paragraph 2, when the person sought has
already been convicted in the Requesting State. Recognizing
that a person may have been found guilty but not yet sentenced,
Paragraph 4(a) requires that the Requested State provide a copy
of the judgment of conviction, only if available.\61\ The
paragraph makes clear that once a finding of guilt has been
made, 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.\62\ Under paragraph 4(b), the Requesting
State is merely required to provide evidence which establishes
that the person sought is the person to whom the finding of
guilt refers. Finally, paragraph 4(c) requires that the
Requesting State provide information regarding the sentence
imposed (if the person has been sentenced) and the extent to
which the sentence has been carried out. This information is
relevant to the Requested State's determination under Article
2(1) whether the person sought has a sufficient portion of his
or her sentence left to serve to justify extradition.
Article 9--Translation
This Article is a standard treaty provision which requires
that all documents submitted in support of an extradition
request must be translated into the language of the Requested
State. Thus, requests by Argentina to the United States will be
translated into English and requests by the United States to
Argentina will be translated into Spanish.
Article 10--Admissibility of Documents
This Article governs the certification and authentication
procedures for documents accompanying an extradition request.
It states that the documents shall be accepted as evidence in
extradition proceedings if certified or authenticated by the
appropriate accredited diplomatic or consular officer of the
Requested State resident in the Requesting State,\63\ or if
certified or authenticated in any other manner accepted by the
laws in the Requested State.
Article 11--Provisional Arrest
This Article describes the process by which a person may be
arrested and detained in the Requested State while the
extradition documents required by Article 8 are being prepared
and translated in the Requesting State, a process which
normally may take a number of weeks. Similar articles are
included in all modern U.S. extradition treaties.
Provisional arrest serves the interests of justice by
allowing for the apprehension of fugitives who pose a risk of
flight or danger to the community. Fleeing fugitives often do
not stay in one place for any significant period of time, and
frequently for less time than it takes to prepare and translate
formal extradition documentation. Moreover, the ability to
immediately arrest dangerous criminals obviates risks to the
safety of the citizenry of the requested country by denying
such criminals the opportunity to continue to engage in illegal
activity while the full extradition documentation is being
prepared.
This Article also contains certain provisions to protect
against capricious or unjustified use of provisional arrest
authority. For example, the Article provides that provisional
arrest may be effected only under urgent circumstances,
requires that a valid warrant for the fugitive's arrest be
outstanding in the requesting country, and imposes a time limit
within which the formal extradition documentation must be
presented to the requested country. These provisions are
discussed in greater detail below.
Paragraph 1 provides that provisional arrest is reserved
for cases of urgency and such a request shall be transmitted by
any written means either through the diplomatic channel or
directly between the United States Department of Justice and
the Argentine Ministry of Foreign Relations.
Paragraph 2 sets forth the information that the Requesting
State must provide in support of a provisional arrest request.
This paragraph requires that the Requested State be provided
with: (1) a description of the person sought; (2) his or her
location, if known; (3) a brief statement of the facts of the
case; (4) a citation to the laws allegedly violated; (5)
statement of the existence of an arrest warrant or judgment of
conviction; (6) an explanation of the reasons for the urgency
of the request; and (7) a statement that the formal extradition
request will be presented.
Paragraph 3 states that the Requesting State must be
promptly notified of the disposition of the provisional arrest
request.
Paragraph 4 provides that a fugitive who has been
provisionally arrested may be released from custody if the
Requested State does not receive the fully documented request
for extradition within sixty (60) days from the date of the
fugitive's provisional arrest.
Finally, although the person sought may be released from
custody if the full extradition documentation is not received
within the sixty day period, paragraph 5 makes clear that in
such cases the person may be taken into custody again and the
extradition proceedings recommenced if the formal request is
received at a later date.
Article 12--Decision on Extradition and Surrender of the Person Sought
Paragraph 1 of this Article requires that the Requested
State promptly notify the Requesting State of its decision on
the extradition request.
Paragraph 2 requires that, if extradition is denied in
whole or in part, the Requested State must provide a reasoned
explanation for the denial and, upon request, a copy of the
pertinent decisions by its judicial authorities.
Paragraph 3 provides that if, pursuant to Article 6, the
Requested State requires assurances regarding the death
penalty, such assurances shall be provided by the Requesting
State prior to the surrender of the person sought.
Paragraph 4 provides that if extradition is granted, the
Parties shall agree on the date and place of the fugitive's
surrender. However, if the fugitive is not removed within
thirty (30) days of the notification described in paragraph 1
or within the time prescribed by the law of the Requested
State, whichever is longer,\64\ then the Requesting State risks
the release of the person from custody and subsequent refusal
of extradition for the same offense.
Article 13--Temporary and Deferred Surrenders
Occasionally, a person sought for extradition may be facing
prosecution or serving a sentence on other charges in the
Requested State. Article 13 provides a means for the Requested
State to temporarily surrender the person sought to the
Requesting State for the purpose of prosecution or, in the
alternative, to defer extradition in such cases until the
conclusion of the Requested State's proceedings against the
person sought and the service of any sentence that may be
imposed in connection therewith. Similar provisions appear in
recent United States extradition treaties.\65\
Paragraph 1 of Article 13 provides for the temporary
surrender of a person wanted 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 provision will be kept in custody while in the Requesting
State, and will be 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 the Requesting State to try the person sought while
evidence and witnesses are more likely to be available, thereby
increasing the likelihood of successful prosecution. Such
transfer may also be advantageous to the person sought in that:
(1) it allows him to resolve the charges sooner; (2) subject to
the laws of each State, it may make it possible for him to
serve any sentence in the Requesting State concurrently with
the sentence in the Requested State; and (3) it permits him to
defend against the charges while favorable evidence is fresh
and more likely to be available to him.
Notwithstanding the above, temporary surrender may not
always be feasible, especially if it would significantly
interfere with or impede the ongoing criminal proceedings in
the Requested State. Accordingly, paragraph 2 of this Article
provides that the Requested State may opt to 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 completion of the service of any sentence
imposed.\66\
Paragraph 3 provides that, if surrender is postponed, such
postponement shall suspend the running of the statute of
limitations in the Requesting State for the offenses for which
extradition is sought.\67\
Article 14--Concurrent Requests
From time to time, a State will receive concurrent requests
from two or more other States for the extradition of the same
person, and thus the Requested State must decide to which of
the Requesting States to surrender the person. In such
situations where one of the Parties to this Treaty, the United
States or Argentina, is the Requested State, and the other
Party to this Treaty is one of the Requesting States, Article
14 sets forth factors that the Requested State shall consider
in determining to which country the person should be
surrendered. Such factors include: (1) whether the requests
were made pursuant to a treaty; (2) the place where each
offense for which extradition is requested was committed; (3)
the gravity of the respective offenses for which extradition is
requested; (4) the respective interests of the Requesting
States; (5) the possibility of further extradition between the
Requesting States; and (6) the chronological order in which the
requests were received from the Requesting States.
This Article makes clear that the Requested State is not
limited to the above enumerated factors but should consider all
relevant factors in weighing its decision to which State to
surrender the person sought. The enumerated factors, however,
are intended to provide guidance to the Requested State and
prevent arbitrary decisions. Among other things, the enumerated
factors recognize: (1) the precedence of requests for which
there is a treaty obligation to extradite over requests for
which there is no such obligation; (2) the importance of
surrendering the person to the State where the principal
individual or societal harm was done as a result of the
offenses, where the most serious charges are being pursued, or
where there is otherwise the greatest interest in prosecuting
the person sought; (3) the importance of each Requesting
State's ability to subsequently extradite the person to another
Requesting State for prosecution, so as to ensure that the
person can be prosecuted to the fullest extent possible; and
(4) the precedence of a request received first in time.
For the United States, the Executive Branch will make the
decision to which country the person should be surrendered in
accordance with this Article.\68\ The Argentine delegation
advised that, for Argentina, the competent authority would
likely be the judicial branch.
Article 15--Seizure and Surrender of Property
At the time of their arrest in the Requested State for the
purpose of extradition, persons are often in possession of
property which may represent the proceeds, instrumentalities,
or other evidence of the offenses of which they are accused in
the Requesting State. As such, the Requesting State has an
interest in having this property surrendered with the fugitive
upon his extradition, so that the property may be used in the
prosecution of the person sought, returned to the victims, or
otherwise disposed of appropriately.
Accordingly, paragraph 1 of this Article provides that, to
the extent permitted by the law in the Requested State, all
articles, documents, and evidence connected with the offense
for which extradition is granted may be seized and surrendered
to the Requesting State. Paragraph 1 further provides that the
surrender of such property may occur even if extradition cannot
be effected due to the death, disappearance, or escape of the
person sought.
Notwithstanding the above, paragraph 2 provides that the
Requested State may condition the surrender of the property
upon assurances from the Requesting State that the property
will be returned to the Requested State as soon as practicable.
Alternatively, the Requested State may defer the surrender of
the property if it is needed as evidence in that State.
Finally, paragraph 3 provides that the obligation to
surrender property under this provision shall be subject to due
respect for the rights of third parties in such property.
Article 16--Rule of Speciality
This Article covers the principle known as the rule of
speciality, which is a standard aspect of United States
extradition practice. Generally, the rule of speciality
prohibits the prosecution of an extraditee for offenses other
than those for which extradition was granted. By limiting
prosecution to those offenses for which extradition was
granted, the rule is intended to prevent a request for
extradition from being used as a subterfuge to obtain custody
of a person for trial or service of sentence on different
charges that may not be extraditable under the Treaty or
properly documented at the time that the request is granted.
This Article sets forth the current formulation of the rule and
its established exceptions.
Paragraph 1 of this Article provides that a person
extradited under the Treaty may not be detained, tried, or
punished in the Requesting State except for: (1) an offense for
which extradition was granted or a differently denominated or
less serious offense that nonetheless is based on the same
facts as the offense for which extradition was granted provided
such offense is extraditable;\69\ (2) an offense committed
after extradition\70\; or (3) any other offense for which the
Requested State gives consent.\71\ Paragraph 1 also provides
that, in cases where such consent is sought, the Requested
State may require the submission of the supporting
documentation called for in Article 8 and the State seeking the
consent may detain the person for ninety days, or such longer
period of time as the Requested State may authorize, while the
request for consent is being processed.
Paragraph 2 of this Article prohibits the Requesting State
from surrendering the person to a third State for a crime
committed prior to extradition under this Treaty without the
consent of the State from which extradition was first
obtained.\72\
Finally, paragraph 3 removes the restrictions of paragraphs
1 and 2 on the detention, trial, or punishment of an extraditee
for offenses other than those for which extradition was
granted, or the extradition of that person to a third State,
if: (1) the extraditee leaves the Requesting State and
voluntarily returns to it; or (2) the extraditee does not leave
the Requesting State within twenty days of being free to do
so.\73\
Article 17--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings in order to expedite
their return to the Requesting State.\74\ This Article provides
that when a fugitive 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 Parties anticipate that in such cases
there would be no need for the formal documents described in
Article 8, or further judicial or administrative proceedings of
any kind.
Furthermore, in the case where the person sought elects to
return voluntarily to the Requesting State under this Article,
it would not be deemed an ``extradition'', and therefore the
rule of speciality in Article 16 would not apply.
Article 18--Transit
At times, law enforcement authorities escorting a
surrendered person back to the State where he is wanted for
trial or punishment are unable to take such person directly
from the surrendering State to the receiving State and must
make a stop, scheduled or unscheduled, in another State. This
Article governs those situations in which one Party to this
Treaty is the receiving State and the other Party is the State
through which the surrendered person must be transited.\75\
Paragraph 1 of this Article gives each Party the power to
authorize transit through its territory of persons being
surrendered to the other Party by a third country. Requests for
transit under this Article are to be transmitted through the
diplomatic channel or directly between the United States
Department of Justice and the Argentine Ministry of Foreign
Relations or through the facilities of the International
Criminal Police Organization (INTERPOL). Transit requests must
contain a description of the person being transported and a
brief statement of the facts of the case upon which his
extradition is based. Paragraph 1 also provides that the person
in transit may be detained in custody during the period of
transit.
Paragraph 2 states that no authorization is needed if air
transportation is being used and no landing is scheduled in the
territory of the other Party. If an unscheduled landing occurs
in the territory of a Party, that Party may require a request
as provided in paragraph 1 of this Article. If such request is
required, it shall be provided within ninety-six hours of the
unscheduled landing, and the person in transit may be detained
until the transit is effected.
Article 19--Representation and Expenses
Paragraph 1 of this Article provides that authorized
representatives of the Requested State shall advise, assist,
appear in court on behalf of, and represent the interests of
the Requesting State in any proceedings related to a request
for extradition.\76\
Paragraph 2 provides that the Requesting State will bear
expenses of extradition relating to the translation of
documents and the transportation of a fugitive to the
Requesting State. The Requested State shall pay all other
expenses incurred in that State by reason of the extradition
proceedings.
Paragraph 3 provides that neither State shall make any
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention, custody,
examination, or surrender of the fugitive. This includes any
claim by the fugitive for damages, reimbursement, or legal
fees, or other expenses occasioned by the execution of the
extradition request.\77\
Article 20--Competent Authority
This Article states that, for the United States, the term
``competent authority'', as used in the Treaty, means the
appropriate authorities of the executive branch.
The term ``competent authority'' is used in Articles 4, 14,
and 16 of the Treaty, and this provision was included to make
clear that the executive branch of the United States will make
the decisions under those Articles concerning: (1) whether an
extradition request was politically motivated; (2) to which
State to surrender a fugitive in the face of concurrent
extradition requests from two or more States; and (3) whether
to consent to a surrendered person's subsequent prosecution in
the Requesting State for offenses other than those for which
extradition was granted.
Under United States law and practice, it is well-
established that the executive branch is the competent
authority for making such decisions. Accordingly, this Article
neither expands the power of the executive nor diminishes the
power of the judiciary beyond that which is already recognized
in U.S. extradition law.
This Article was made to apply only to the United States
because the Argentine delegation maintained that, under
Argentine extradition practice, the ``competent authority'' as
used in the Treaty may in some cases be the Argentine judicial
branch.
Article 21--Consultation
This Article provides that the Parties may consult with
each other directly in connection with the processing of
individual extradition cases and in furtherance of maintaining
and improving procedures for the implementation of the Treaty.
This is a standard provision in modern U.S. extradition
treaties.\78\
Article 22--Application
This Article, like its counterparts in many of the other
United States extradition treaties negotiated in the past two
decades,\79\ expressly makes the Treaty retroactive to cover
offenses that occurred before as well as after it enters into
force.
The retroactive application of extradition treaties does
not violate the ex post facto clause of the U.S.
Constitution.\80\ Extradition treaties do not, of course, make
acts crimes. They merely provide a means by which persons who
committed acts that were criminal offenses at the time of their
commission can be held to answer for those offenses.\81\
Article 23--Ratification, Entry Into Force, and Termination
This Article contains standard treaty provisions regarding
the ratification, entry into force, and termination of the
Treaty. Paragraph 1 provides that the Treaty shall be subject
to ratification, and that instruments of ratification shall be
exchanged as soon as possible. Paragraph 2 provides that the
Treaty will enter into force the day after the date of the
exchange of the instruments of ratification.
Paragraph 3 of this Article provides that the 1972 treaty
shall cease to be in effect upon entry into force of this
Treaty. Nevertheless, the 1972 treaty shall continue to apply
to extradition proceedings in which extradition documents have
already been submitted to the courts when this Treaty enters
into force. Paragraph 3 contains additional caveats, however,
that Article 17 of this Treaty (waiver of extradition) shall
apply to such proceedings,\82\ and Article 16 of this Treaty
(rule of speciality) shall apply to persons found extraditable
under the 1972 treaty.\83\
Paragraph 4 of this Article contains standard treaty
language for the termination of the Treaty by either Party
through written notice to the other Party, and states that
termination shall become effective six months after the date of
such notice.
Technical Analysis of The Extradition Treaty Between The United States
of America and the Republic of Austria signed January 8, 1998
On January 8, 1998, the United States signed a treaty on
extradition with the Republic of Austria (hereinafter ``the
Treaty''). In recent years, the United States has signed
similar treaties with many other countries as part of a highly
successful effort to modernize our law enforcement relations.
The new extradition treaty will replace the treaty now in
force,\84\ and constitutes a major step forward in the United
States' efforts to win the cooperation of key foreign countries
in combating transnational organized crime, terrorism, and drug
trafficking.
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 Republic of
Austria has its own internal law\85\ that will apply to United
States' requests under the Treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
This article, like the first article in every recent United
States extradition treaty, formally obligates each Contracting
State to extradite to the other Contracting State persons
charged with or found guilty of an extraditable offense,
subject to the provisions of the Treaty. The article refers to
authorities ``in'' the Requesting State rather than ``of'' the
Requesting State, since the obligation to extradite, in cases
arising from the United States, would include state and local
authorities as well as federal cases. The term ``found guilty''
was used instead of ``convicted'' because in Austria 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. Thus, sentencing in the United
States may occur at some considerable time after there has been
a finding of guilt. The negotiators intended to make it clear
that the Treaty applies to persons adjudged guilty who flee
prior to sentencing.\86\
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what constitutes an extraditable offense. The Treaty, like the
recent United States extradition treaties with Jamaica, Jordan,
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 which is subject under the laws in both Contracting
States to 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 under the laws in the
United States). 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 Contracting States pass laws dealing
with a new type of criminal activity, or if the list
inadvertently fails to cover a type of criminal activity
punishable in both nations.
Paragraph 2 requires that if the person has already been
convicted and sentenced, the person must have at least three
months of that sentence still to serve. Most U.S. extradition
treaties signed in recent years do not contain such a
requirement, but provisions of this kind do appear in some
recent United States extradition treaties.\87\
Paragraph 3 states that when extradition has been granted
for an extraditable offense, it shall also be granted for any
other offense even if the time conditions in Paragraphs 1 and 2
do not apply, provided that all of the other requirements for
extradition are met. For example, if Austria agrees to
extradite to the United States a fugitive wanted for
prosecution on a felony charge (punishable by more than one
year of imprisonment), the United States may also obtain
extradition for any misdemeanor offenses (punishable by a
shorter sentence) that have been charged, as long as those
misdemeanors are also recognized as criminal offenses in the
Republic of Austria. 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 extraditable offense.
This practice is generally desirable from the standpoint of the
Requesting State in that it permits all charges to be disposed
of more quickly, thereby facilitating trials while evidence is
fresh and a concurrent sentence is possible. Similar clauses
are found in our recent extradition treaties with Australia,
Ireland, Italy, and Costa Rica.
Paragraph 4 reflects the intention of the Contracting
States to interpret the principles of this article broadly.
Subparagraph (A) requires the 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 the Contracting States. Subparagraph (B) prevents
extradition from being denied in tax, customs duties, or import
or export of commodities solely because the Requested State
does not have the same taxes, currency controls, or import-
export laws. This was included to override Section 15(2) of
Austrian Extradition Law, which would otherwise forbid
extradition for crimes that are exclusively tax, customs, or
import offenses. Subparagraph (C) was included because judges
in foreign countries often are 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
requirements 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 be disregarded in applying the dual criminality
principle. For example, Austria's authorities must treat United
States mail fraud charges\88\ in the same manner as fraud
charges under state laws, and view the federal crime of
interstate transportation of stolen property\89\ as they would
unlawful possession of stolen property.
Paragraph 5 follows the practice of recent extradition
treaties in providing that extradition be granted for
attempting or conspiring to commit, or otherwise participating
in the commission of an extraditable offense. As conspiracy
charges are frequently 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. Thus, Paragraph 5 makes it clear that crimes,
such as attempts and conspiracy, that might be considered
inchoate are extraditable if the related offense is an
extraditable one pursuant to paragraph 1.
Paragraph 6 deals with the fact that federal crimes may
involve acts committed wholly outside United States territory
by providing that either State may grant extradition for an
extraditable offense regardless of where the act or acts
constituting the offense were committed. Our jurisprudence
recognizes the jurisdiction of our courts to hear criminal
cases involving 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.\90\ The
Austrian Government's ability to prosecute extraterritorial
offenses is also quite wide, for its law gives it extensive
jurisdiction to prosecute for extraterritorial offenses and an
obligation to prosecute offenses committed by Austrian
nationals anywhere in the world provided that the acts
constituting the offense were punishable at the place of
commission.\91\ Paragraph 6 reflects the Parties' agreement
that either State may grant extradition to each other for
extraterritorial offenses regardless of where the offense was
committed.\92\ A similar provision is contained in other recent
U.S. extradition treaties.\93\
Article 3--Nationality
Article 3 states that neither State shall be bound to
extradite its own nationals, but the executive authority of the
Requested State shall have the power to do so [if, in its
discretion, it be deemed proper to do so and] provided that the
law of the Requested State does not so preclude. The United
States does not deny extradition on the basis of the offender's
citizenship.\94\ Our long-standing policy is to draw no
distinction between citizens and others for extradition
purposes. Austria, however is specifically prohibited under its
extradition law from extraditing its nationals.\95\ Therefore,
it is unlikely that Austria will actually surrender its
nationals to the United States under the Treaty unless
Austria's law and policy changes.
Paragraph 2 states that if the Requested State denies
extradition solely on the basis of the nationality of the
offender, that State must submit the case to its authorities
for prosecution if requested to do so by the Requesting State.
Similar provisions are in many of our extradition treaties.\96\
Article 4--Political and Military Offenses
Paragraph 1 prohibits extradition if the offense for which
extradition is requested is a political offenses.\97\ This is a
standard provision in recent United States extradition
treaties.
Paragraph 2 describes three categories of offenses that
shall not be considered political offenses.
First, the political offense exception does not apply to
murder, against any person or under any circumstances.
Second, the offense does not apply to any other willful
crimes against the person of a Head of State of one of the
Contracting States, or a member of the Head of State's family.
Third, the political offense exception does not apply to
offenses for which both Contracting States have an obligation
pursuant to a multilateral international agreement either to
extradite the person sought or to submit the case to their
competent authorities for decision regarding prosecution, such
as the 1988 UN Convention Against the Illicit Traffic in
Narcotic Drugs and Psychotropic Substances.\98\
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State determines
that the request is politically motivated.\99\ United States
law and practice have been that the Secretary of State has the
sole discretion to determine whether an extradition request is
based on improper political motivation.\100\
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\101\
Article 5--Jurisdiction of the Requested State
Paragraph 1 permits the Requested State to refuse
extradition if the person sought is being prosecuted in the
Requested State for the offense for which extradition is
requested. This provision was included to keep the treaty
consistent with Austrian law.\102\
Paragraph 2 makes it clear that either Party may grant
extradition where the Requested State's authorities have
declined to prosecute the offender, or have instituted criminal
proceedings against the offender and thereafter elected to
discontinue the proceedings. This provision was included
because a decision by the Requested State to forego
prosecution, or to drop charges already filed, could be the
result of a failure to obtain sufficient evidence or witnesses
for trial, whereas the prosecution in the Requesting State
might 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.\103\
Article 6--Non Bis in Idem
This article permits extradition when the person sought is
charged by each Contracting State with different offenses
arising out of the same basic transaction.
Paragraph 1, which prohibits extradition if the person
sought has been convicted or discharged with final and binding
effect in the Requested State for the offense for which
extradition is requested, is similar in effect to language
present in many United States extradition treaties. This
provision applies only when the person sought has been
convicted or acquitted in the Requested State of exactly the
same crime that is charged in the Requesting State. It is not
enough that the same facts were involved. Thus, if the person
sought is accused by one Contracting State of illegally
smuggling narcotics into that country, and is charged by the
other Contracting State with unlawfully exporting the same
shipment of drugs, an acquittal or conviction in one
Contracting State does not insulate that person from
extradition because different crimes are involved.
Paragraph 2 states that an acquittal or discharge for lack
of jurisdiction is not an obstacle to extradition. This
provision avoids the possibility of a miscarriage of justice if
the Requested State were to attempt to prosecute a suspect over
which it has no jurisdiction, discover that it cannot proceed,
then use its error as a basis for shielding the suspect from
extradition to the State that does have jurisdiction and wishes
to prosecute.
Article 7--Lapse of Time
Article 7 states that extradition shall not be granted if
the prosecution or the carrying out of the sentence has become
barred by lapse of time under the laws of the Requesting State.
The reference to ``the carrying out of the sentence'' reflects
the fact that Austria, like many civil law countries, has a
statute of limitations relating to such matters, in addition to
a statute of limitation on prosecutions.
Under this provision 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. The article permits
extradition to be denied only if the Requesting State's statute
of limitations bars prosecution or enforcement of the sentence.
Several recent U.S. extradition treaties contain similar
provisions.\104\
Article 8--Capital Punishment
This article was the subject of extensive discussion
between the two delegations, inasmuch as the revision of this
provision of the 1930 Convention was an important objective for
the Austrian delegation. Austria's Constitution forbids the
death penalty,\105\ and Austria regards the extradition of a
person from Austria to face execution or even the imposition of
the death penalty in the United States as inconsistent with its
Constitution. Austrian law explicitly requires that ``in
respect of an offense punishable by the death penalty according
to the law of the requesting state [extradition] shall be
allowed only if it is guaranteed that the death penalty will
not be pronounced. An extradition for enforcement of the death
penalty shall not be allowed.''\106\
Paragraph 1 permits the Requested State to refuse to
extradite when 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 an assurance that the death penalty
will not be imposed (in the case of a person sought for trial)
or carried out (in the case of a person already sentenced to
death at the time extradition is requested). The Austrian
delegation told the United States delegation that it is
virtually inconceivable that Austria would ever grant
extradition without the assurances described in this paragraph,
which is similar in spirit and effect to provisions found in
other recent United States extradition treaties.\107\
Paragraph 2 provides that when the Requesting State gives
assurances in accordance with paragraph 1, extradition shall be
granted, and the assurances shall be binding on the Requesting
State.
Article 9--Convictions in Absentia
This article states that if the person sought was convicted
in absentia, the Requesting State's executive authority may
refuse extradition unless the Requesting State supplies
information demonstrating that the person has been given an
adequate opportunity to present a defense to the charges. This
paragraph will enable the Secretary of State to carry out the
long-standing United States policy of extraditing persons who
were convicted in absentia only when the person has had or will
have a meaningful opportunity in the Requesting State to be
heard on the issue of guilt or innocence. A similar provision
is found in some other U.S. extradition treaties.\108\
Article 10--Extradition Procedures and Required Documents
This article sets forth the documentary and evidentiary
requirements for an extradition request. Similar articles are
present in 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 person sought pursuant to Article 13.
Provisional arrest requests need not be initiated through the
diplomatic channel provided that 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
found guilty 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 text of the law describing the essential elements of
the offense for which extradition is requested,'' which enables
the Requested State to determine easily whether the request
satisfies the requirement for dual criminality.
Paragraph 3 requires that if the fugitive has not yet been
convicted of the crime for which extradition is requested, the
Requesting State must provide a copy of the arrest warrant, a
copy of the charging document, if available, and ``documents
setting forth sufficient information to provide a reasonable
basis to believe that the person to be extradited committed the
offense for which extradition is requested and is the person
named in the warrant of arrest.'' This provision is meant to
satisfy the standard of ``probable cause,'' under which our
courts permit extradition if there is probable cause to believe
that an extraditable offense was committed and that the
fugitive committed it.\109\
Paragraph 4 lists the information needed to extradite a
person who has been convicted 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.\110\
Paragraph 5 states that the documents transmitted through
diplomatic channels in support of the extradition request shall
be admissible in extradition proceedings without further
certification, authentication, or legalization.
Article 11--Supplementary Information
This article 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 to permit
the court in the Requested State, in appropriate cases, to
grant a reasonable continuance to obtain, translate, and
transmit additional materials. A somewhat similar provision is
found in other United States extradition treaties.\111\
Article 12--Translation
Article 12 requires that unless otherwise agreed, all
documents submitted in support of the request shall be
translated by the by the Requesting State into the language of
the Requested State. The article also states that translations
need not be certified.
Article 13--Provisional Arrest
This article describes the process by which a person in a
Contracting State may be arrested and detained while the formal
extradition papers are being prepared.
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
Austria's Ministry of Justice. The provision also indicates
that INTERPOL may be used to transmit such a request.
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 be
notified without delay of the disposition of the request and
the reasons for its denial.
Paragraph 4 provides that a person who has been
provisionally arrested may be released from detention if the
Requesting State does not submit a fully documented request for
extradition to the executive authority of the Requested State
within 60 days of the provisional arrest. When the United
States is the Requested State, the executive authority includes
the Secretary of State and the United States Embassy in
Vienna.\112\ This provision does not create a right in the
provisionally arrested person to immediate release, but affords
the Requested State the discretion to cause such a release.
Although the person sought may be released from custody if
the documents are not received within the sixty-day period or
any extension thereof, the extradition proceedings against the
fugitive need not be dismissed. The final paragraph in this
article makes it clear that the person may be taken into
custody again, and the extradition proceedings may commence if
the formal request is presented subsequently.
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
in whole or in part, the Requested State must provide the
reasons for the denial.
Paragraph 2 states that if extradition is granted, the
authorities of the Contracting States must agree on a time and
place for surrender of the person sought.
Paragraph 3 states that the Requesting State must remove
the person within the time prescribed by the law of the
Requested State, or, if the Requested State has no such law,
within a reasonable period of time to be determined by the
Requested State. If not, the person may be discharged from
custody, and the Requested State may subsequently refuse to
extradite the person for the same offense. United States law
provides that surrender should occur within two calendar months
of a finding that the person is extraditable,\113\ or of the
conclusion of any litigation challenging that finding,\114\
whichever is later. The law in Austria does not set a specific
time period for removal,\115\ and Austrian authorities will
have to prescribe a reasonable period of time in each case.
Paragraph 4 provides that when surrender or acceptance of
delivery of a fugitive is delayed because of circumstances
beyond the control of one of the Parties, the Party will notify
the other before the expiration of any time limits, and a new
date for surrender or delivery will be set.
Article 15--Postponed and Temporary Surrender
Occasionally, a person sought for extradition may already
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 and
the full execution of any punishment imposed.
Paragraph 1 provides that the executive authority of the
Requested State may postpone surrender of a person who is
serving a sentence in the Requested State until the prosecution
has been concluded and any sentence has been served.\116\ The
provision allows the Requested State to postpone the surrender
of a person facing prosecution or serving a sentence in the
Requested State.
Paragraph 2 provides for the temporary surrender of a
person wanted for prosecution in the Requesting State who is
being prosecuted or is serving a sentence in the Requested
State.\117\ A person temporarily transferred pursuant to the
Treaty will be returned to the Requested State at the
conclusion of the proceedings against that person. 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) subject to the
laws in each state, 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. Similar provisions are found in many recent
extradition treaties.
Paragraph 2 also requires that a person temporarily
surrendered under this provision receive credit for the time
spent in custody in the territory of the Requesting State
toward the penalty imposed or to be imposed in the Requested
State.
Article 16--Deferral of Extradition Proceedings
This article complements Article 15 by expressly permitting
the Requested State to defer the initiation of extradition
proceedings as well as the actual surrender of the fugitive.
Article 17--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties in listing some of the factors that
the executive authority of the Requested State must consider
when reviewing requests from two or more countries for the
extradition of the same person. For the United States, the
Secretary of State decides to which country the person should
be surrendered;\118\ for the Republic of Austria, the decision
is made by the Minister of Justice.\119\
Article 18--Seizure and Surrender of Property
Article 18(1) addresses the seizure and surrender by the
Requested State of articles, documents and evidence connected
with the offense for which extradition is requested. To the
extent permitted by its laws, the Requested State may seize
such property that is connected with an offense for which
extradition is sought. The section also provides for objects
seized thereunder to be surrendered to the Requested State if
extradition is granted\120\, and it states that such items may
be surrendered even if extradition cannot be effected due to
the death, disappearance or escape of the person sought.
Paragraph 2 states that the Requested State may condition
its surrender of property upon satisfactory assurances that the
property will be returned to the Requested State as soon as
practicable. Paragraph 2 also permits the surrender of property
to be deferred if it is needed as evidence in the Requested
State.
Paragraph 3 provides that the surrender of property under
this provision is expressly made subject to due respect for the
rights of third parties in such property.
Paragraph 4 states that restrictive regulations concerning
the import and export of articles and foreign currency shall
not apply to items surrendered under this Treaty. This
provision was included because Austria has strict currency
control regulations that might otherwise block the return to
the United States of evidence or proceeds of the offense
located in Austria, during the extradition proceedings.\121\
Article 19--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 execution of a sentence
on different charges that are not extraditable or properly
documented in the request.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, tried, or punished in the Requesting State for:
(1) the offense for which extradition was granted or a
differently denominated offense based on the same facts,
provided the offense is extraditable or is a lesser included
offense; (2) an offense committed after the extradition; or (3)
an offense for which the executive authority of the Requested
State consents.\122\ Paragraph 1(C)(II) also permits the
Contracting State that is seeking consent to pursue new charges
to detain the person extradited for 90 days or for such longer
period as the Requested State may authorize while the Requested
State makes its determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third state without the Requested
State's consent.
Paragraph 3 permits the detention, trial or punishment of
an extradited person for additional offenses or extradition to
a third state if: (1) the extradited person leaves the
Requesting State after extradition and voluntarily returns, or
is lawfully returned, to it; or (2) the extradited person does
not leave the Requesting State within thirty days of being free
to do so.
Paragraph 4 states that this article does not prevent the
Requesting State from taking measures necessary to effect the
departure of the extradited person from its territory, or to
prevent expiration of a right of action through lapse of time.
Article 20--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
that when a fugitive consents to surrender to the Requesting
State, the person may be returned to the Requesting State as
expeditiously as possible without further proceedings. The
negotiators anticipated that in such cases there will be no
need for the formal documentation described in Article 10 or
further judicial or administrative proceedings of any kind. The
second sentence states that the rule of specialty is
inapplicable to persons who elect simplified extradition. This
is consistent with long-standing United States policy\123\ and
with Austrian law.\124\
Article 21--Transit
Paragraph 1 gives each Contracting State the power to
authorize transit through its territory of persons being
surrendered to the other Contracting State by a third state. A
person in transit may be detained in custody during the transit
period. Requests for transit are to contain a description of
the person whose transit is proposed and a brief statement of
the facts of the case with respect to which transit is sought.
The transit request may be submitted through diplomatic
channels, or directly between the United States Department of
Justice and the Republic of Austria Ministry of Justice.
INTERPOL may be used for the transmittal of such requests for
transit.
Paragraph 2 provides that no advance authorization is
needed for transit pursuant to the article if travel is by
aircraft and no landing is scheduled in the territory of the
country being transited. Should an unscheduled landing occur, a
request for transit may be required at that time, and the
Requested State may grant the request if, in its discretion, it
is deemed appropriate to do so. The Treaty ensures that the
person will be kept in custody for up to 96 hours until a
request for transit is received and thereafter until it is
executed.
Article 22--Assistance and Expenses
Paragraph 1 provides that the Requested State shall advise
the Requesting State and represent its interests by all legal
means within its power in extradition proceedings before the
judges and officials of the Requested State. Thus, the United
States will represent Austria in connection with requests from
Austria for extradition before the courts in this country, and
the Austrian Minister of Justice will represent the United
States in connection with United States extradition requests to
Austria.
Paragraph 2 states that the Requesting State shall bear the
expenses of translation and transportation of the person
sought, and the Requested State shall pay all other expenses.
Paragraph 3 provides that neither Contracting State shall
make a pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination and surrender of the person sought. This includes
any claim by the person sought for damages, reimbursement of
legal fees, or other expenses occasioned by the execution of
the extradition request.
Article 23--Consultation
This article provides that the United States Department of
Justice and the Republic of Austria Ministry of Justice may
consult with each other with regard to an individual
extradition case or extradition procedures in general. A
similar provision is found in other recent United States
extradition treaties.\125\
Article 24--Application
This Treaty, like most United States extradition treaties
negotiated in the past two decades, is expressly made
retroactive and covers offenses that occurred before as well as
after the Treaty enters into force.
Article 25--Ratification and Entry Into Force
The first two paragraphs of this article provide that the
treaty will become effective only after an exchange of
instruments of ratification at Washington, and that the Treaty
will enter into force on the first day of the third month
following the month in which the instruments of ratification
are exchanged.
Paragraph 3 provides that the 1930 Treaty and 1934
Supplementary Convention will cease to have effect upon the
entry into force of the Treaty, but extradition requests
pending before the courts when this Treaty enters into force
will nevertheless be processed to conclusion under the prior
Treaty and Supplementary Convention. Nevertheless, Article 2 of
this Treaty (which defines extraditable offenses) shall apply
to such proceedings, as well as Article 15 (which deals with
temporary and deferred surrender), and Article 19 (which
concerns the rule of specialty). Thus, persons involved in such
proceedings may temporarily be surrendered if the Parties
agree, and the new provision on specialty will apply.
Article 26--Termination
This article contains standard treaty language describing
the procedure for termination of the Treaty by either
Contracting State. Termination shall become effective six
months after the date of such notice.
Technical Analysis of the Extradition Treaty Between the United States
of America and Barbados signed February 28, 1996
On February 28, 1996, the United States signed a treaty on
extradition with Barbados (hereinafter ``the Treaty''). In
recent years, the United States has signed similar treaties
with many other countries, as part of a highly successful
effort to modernize our law enforcement relations. The new
extradition treaty will replace the treaty now in force,\126\
and constitutes a major step forward in the United States'
efforts to win the cooperation of countries in the region in
combating organized crime, transnational terrorism, and
international drug trafficking.
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 for the United States.
Barbados has its own internal legislation on extradition,\127\
which will apply to United States' requests under the treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
The first article of the Treaty, like the first article in
every recent United States extradition treaty, formally
obligates each Party to extradite to the other persons sought
for prosecution or convicted of an extraditable offense,
subject to the provisions of the remainder of the Treaty. The
article refers to charges ``in'' the Requesting State rather
than ``of'' the Requesting State, since the obligation to
extradite, in cases arising from the United States, would
include state and local prosecutions as well as federal cases.
It was agreed that the term ``convicted'' includes instances in
which the person has been found guilty but a sentence has not
yet been imposed.\128\ The negotiators intended to make it
clear that the Treaty applies to persons adjudged guilty who
flee prior to sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what offenses are extraditable. This Treaty, like most recent
United States extradition treaties, including those with
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden
(Supplementary Convention), and Costa Rica, does not list the
offenses for which extradition may be granted. Instead,
paragraph 1 of the article permits extradition for any offense
punishable under the laws of both countries 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 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
a criminal activity punishable in both countries.
During the negotiations, the United States delegation
received assurances from the Barbados delegation that U.S.
offenses such as operating a continuing criminal enterprise
(Title 21, United States Code, Section 848), would be
extraditable, and that offenses under the racketeering statutes
(Title 18, United States Code, Section 1961-1968) would be
extraditable if the predicate offense would be an extraditable
offense. The Barbados delegation also stated that extradition
would be possible for such high priority offenses as drug
trafficking, terrorism, money laundering, tax fraud or tax
evasion, crimes against environmental protection laws, and
antitrust violations punishable in both states by one year of
imprisonment.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting or conspiring to commit, aiding or abetting,
counseling or procuring the commission of, or otherwise being
an accessory before or after the fact to, an extraditable
offense. 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. Barbados has no general
conspiracy statute like Title 18, United States Code, Section
371. Therefore, paragraph 2 creates an exception to the ``dual
criminality'' rule of paragraph 1 by making conspiracy an
extraditable crime if the offense which was the object of the
conspiracy is an extraditable offense.
Paragraph 3 reflects the intention of both countries to
interpret the principles of this article broadly. 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 the 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 be disregarded in
applying the dual criminality principle. For example, Barbados
authorities must treat United States mail fraud charges (Title
18, United States Code, Section 1341) in the same manner as
fraud charges under state laws, and view the federal crime of
interstate transportation of stolen property (Title 18, United
States Code, Section 2314) 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 country. A similar
provision is contained in all recent United States extradition
treaties.
Paragraph 4 deals with the fact that many federal crimes
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes jurisdiction in our courts to
prosecute 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.\129\ In
Barbados, however, the Government's ability to prosecute
extraterritorial offenses is much more limited. Therefore,
Article 2(4) reflects Barbados' agreement to recognize United
States jurisdiction to prosecute offenses committed outside of
the United States if Barbados' law would permit it to prosecute
similar offenses committed outside of it in corresponding
circumstances. If the Requested State's laws do not so provide,
the final sentence of the paragraph states that extradition may
be granted, but the executive authority of the Requested State
has the discretion to deny the request.
Paragraph 5 states 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
have been met except for the requirement that the offense be
punishable by more than one year of imprisonment. For example,
if Barbados 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 that have been charged, as long as those
misdemeanors would also be recognized as criminal offenses in
Barbados. 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 extraditable 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
countries such as Australia, Ireland, Italy, and Costa Rica.
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served.\130\
This Treaty, like most U.S. extradition treaties in the past
two decades, contains no such requirement. Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Nationality
Some countries refuse to extradite their own nationals to
other countries for trial or punishment, or are prohibited from
doing so by their statutes or constitution. The United States
does not deny extradition on the basis of the offender's
citizenship,\131\ and the Barbados extradition law contains no
exception for Barbadian nationals. Therefore, Article 3 of the
Treaty provides that extradition is not to be refused based on
the nationality of the person sought.
Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in United
States extradition treaties.\132\
Paragraph 2 describes three categories of offenses which
shall not be considered to be political offenses.
First, the political offense exception does not apply where
there is a murder or other willful crime against the person of
a Head of State of the Contracting States, or a member of the
Head of State's family.
Second, the political offense exception does not apply to
offenses that are included in a multilateral treaty,
convention, or international agreement that requires the
parties to either extradite the person sought or submit the
matter for prosecution, such as the United Nations Convention
Against the Illicit Traffic in Narcotic Drugs and Psychotropic
Substances.\133\
Third, the political offense exception does not apply to
conspiring or attempting to commit, or to aiding and abetting
the commission or attempted commission of the foregoing
offenses.
Article 4(3) provides that extradition shall not be granted
if the executive authority of the Requested State finds that
the request was politically motivated.\134\ This is consistent
with the long-standing law and practice of the United States,
under which the Secretary of State alone has the discretion to
determine whether an extradition request is based on improper
political motivation.\135\
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\136\
Article 5--Prior Prosecution
This article will permit extradition in situations in which
the fugitive is charged in each country with different offenses
arising out of the same basic transaction.
The first paragraph prohibits extradition if the offender
has been convicted or acquitted in the Requested State for the
offense for which extradition is requested, and is similar to
language present in many United States extradition
treaties.\137\ The parties agreed that this provision applies
only if the offender is convicted or acquitted in the Requested
State of exactly the same crime he is charged with in the
Requesting State. It would not be enough that the same facts
were involved. Thus, if an offender is accused in one State of
illegally smuggling narcotics into the country, and is charged
in the other State of unlawfully exporting the same shipment of
drugs out of that State, an acquittal or conviction in one
state would not insulate the person from extradition to the
other, since different crimes are involved.
Paragraph 2 makes it clear that neither State can refuse to
extradite an offender 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, could result
from failure to obtain sufficient evidence or witnesses
available for trial, whereas the Requesting State might not
suffer from the same impediments. This provision should enhance
the ability to extradite to the jurisdiction which has the
better chance of a successful prosecution.
Article 6--Extradition Procedures and Required Documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is generally
similar to corresponding articles in the United States' most
recent extradition treaties.
The first paragraph requires that each formal request for
extradition be submitted through the diplomatic channel.\138\ A
formal extradition request may be preceded by a request for
provisional arrest under Article 9, and provisional arrest
requests need not be initiated through diplomatic channels if
the requirements of Article 9 are met.
Article 6(2) outlines the information which must accompany
every request for extradition under the Treaty. Most of the
items listed in Article 6(2) enable the Requested State to
determine quickly whether extradition is appropriate under the
Treaty. For example, Article 6(2)(c)(i) calls for ``information
as to the provisions of the law describing the essential
elements of the offense for which extradition is requested,''
enabling the requested state to determine easily whether the
request satisfies the requirement for dual criminality under
Article 2. Some of the items listed in Article 6(2), however,
are required strictly for informational purposes. Thus, Article
6(2)(c)(iii) calls for ``information as to the provisions of
the law describing any time limit on the prosecution,'' even
though Article 8 of the Treaty expressly states that
extradition may not be denied due to lapse of time for
prosecution. The United States and Barbados delegations agreed
that Article 6(2)(c)(iii) should require this information so
that the Requested State would be fully informed about the
charges in the Requesting State.
Article 6(3) describes the additional information required
when the person is sought for trial in the Requesting State.
Article 6(3)(c) requires that if the fugitive is a person who
has not yet been convicted of the crime for which extradition
is requested, the Requesting State must provide ``such
information as would provide probable cause, according to the
law of the Requested State, for the arrest and committal for
trial of the person if the offense had been committed in the
Requested State.'' This provision will alleviate one of the
major practical problems with extradition from Barbados. The
1931 Treaty permits extradition only if ``. . . the evidence be
found sufficient, according to the laws of the High Contracting
Party applied to, either to justify the committal of the
prisoner for trial, in the case the crime or offense had been
committed in the territory of such High Contracting party, or
to prove that the person is the identical person convicted by
the courts of the High Contracting Party who makes the
requisition . . .''.\139\ Barbados' courts have interpreted
this clause to require that a prima facie case against the
defendant be shown before extradition will be granted. By
contrast, U.S. law permits extradition if there is probable
cause to believe that an extraditable offense was committed and
the offender committed it.\140\ Barbados' agreement to
extradite under the above standard in this Treaty eliminates
this imbalance in the burden of proof for extradition, and
should dramatically improve the United States' ability to
extradite from Barbados.
Article 6(4) lists the information required to extradite a
person who has already been convicted 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.\141\
Article 7--Admissibility of Documents
Article 7 governs the authentication procedures for
documents prepared for use in extradition cases.
The article states that when the United States is the
Requesting State, the documents in support of extradition must
be authenticated by an officer of the United States Department
of State and certified by the principal diplomatic or consular
officer of Barbados resident in the United States. This is
intended to replace the cumbersome and complicated procedures
for authenticating extradition documents applicable under the
current law in Barbados.\142\ When the request is from
Barbados, the documents must be certified by the principal
diplomatic or consular officer of the United States resident in
Barbados, in accordance with United States extradition
law.\143\
The third subparagraph of the article permits documents to
be admitted into evidence if they are authenticated in any
other manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition, and the
Requested State is free under subsection (c) to utilize that
information if the information satisfies the ordinary rules of
evidence in that state. This ensures that evidence which is
acceptable under the evidentiary rules of the Requested State
may be used in extradition proceedings even if it is not
otherwise authenticated pursuant to the treaty. This paragraph
also should insure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing simply because of an
inadvertent error or omission in the authentication process.
Article 8--Lapse of Time
Article 8 states that the decision to deny an extradition
request must be made without regard to provisions of the law
regarding lapse of time in either the requesting or requested
states.\144\ The U.S. and Barbadian delegations agreed that a
claim that the statute of limitations has expired is best
resolved by the courts of the Requesting State after the
fugitive has been extradited.
Article 9--Provisional Arrest
This article describes the process by which a person in one
country may be arrested and detained while the formal
extradition papers are being prepared by the Requesting
State.\145\
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
the Attorney General in Barbados. The provision also indicates
that INTERPOL may be used to transmit such a request.
Paragraph 2 states the information which the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must be
advised promptly of the outcome of its application and the
reason for any denial.
Paragraph 4 provides that the fugitive may be released from
detention if the Requesting State does not file a fully
documented request for extradition with the executive authority
of the Requested State within sixty days of the date on which
the person was arrested. When the United States is the
Requested State, it is sufficient for purposes of this
paragraph if the documents are received by the Secretary of
State or the U.S. Embassy in Bridgetown, Barbados.\146\
Article 9(5) makes it clear that in such cases the person
may be taken into custody again and the extradition proceedings
may commence if the formal request is presented subsequently.
Article 10--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
in whole or in part, the Requested State must provide an
explanation of the reasons for the denial. If extradition is
granted, the article provides that the two States 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 for the same offense. United States law currently
permits the person to request release if he has not been
surrendered within two calendar months of having been found
extraditable,\147\ or of the conclusion of any litigation
challenging that finding,\148\ whichever is later. The law in
Barbados permits the person to apply to a judge for release if
he has not been surrendered within two months of the first day
on which he could have been extradited.\149\
Article 11--Deferred and Temporary Surrender
Occasionally, a person sought for extradition may already
be facing prosecution or serving a sentence on other charges in
the Requested State. Article 11 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 that may have been
imposed.
Article 11(1) provides for the temporary surrender of a
person wanted 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
provision will be 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 successful prosecution. Such transfer may
also be advantageous to the person sought in that: (1) it
allows him to resolve the charges sooner; (2) subject to the
laws in each state, it may make it possible for him to serve
any sentence in the Requesting State concurrently with the
sentence in the Requested State; and (3) it permits him to
defend against the charges while favorable evidence is fresh
and more likely to be available to him. Similar provisions are
found in many recent extradition treaties.
Article 11(2) provides that the executive authority of the
Requested State may postpone the extradition proceedings
against a person who is serving a sentence in the Requested
State until the full execution of the punishment that has been
imposed.\150\ The provision's wording makes it clear that the
Requested State may also postpone the surrender of a person
facing prosecution or serving a sentence in that State, even if
all necessary extradition proceedings have been completed.
Article 12--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties and lists some of the factors which
the executive authority of the Requested State must consider in
determining to which country a person should be surrendered
when reviewing requests from two or more States for the
extradition of the same person. For the United States, the
Secretary of State would make this decision;\151\ for Barbados,
the decision would be made by the Attorney General.\152\
Article 13--Seizure and Surrender of Property
This article provides that to the extent permitted by its
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other
evidence--relating to the offense for which extradition is
requested.\153\ The article also provides that these objects
shall be surrendered to the Requesting State upon the granting
of the extradition, or even if extradition cannot be effected
due to the death, disappearance, or escape of the fugitive.
Article 13(2) states that the Requested State may condition
its surrender of property in such a way as to ensure that the
property is returned as soon as practicable. This paragraph
also permits the Requested State to defer surrender altogether
if the property is needed as evidence in the Requested State.
Article 13(3) makes the surrender of property expressly
subject to due respect for the rights of third parties to such
property.
Article 14--Rule of Specialty
This article covers the principle known as the rule of
speciality, which is a standard aspect of United States
extradition practice. Designed to ensure that a fugitive
surrendered for one offense is not tried for other crimes, the
rule of speciality prevents a request for extradition from
being used as a subterfuge to obtain custody of a person for
trial or service of sentence on different charges which may not
be extraditable under the Treaty or properly documented at the
time that the request is granted.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, tried, or punished in the Requesting State for (1)
the offense for which extradition was granted, or a differently
denominated offense based on the same facts, provided the
offense is extraditable or is a lesser included offense; (2)
for offenses committed after the extradition; and (3) for other
offenses for which the executive authority of the Requested
State consents.\54\ Article 14(1)(c)(ii) permits the State
which is seeking consent to pursue new charges to detain the
defendant for 90 days while the Requested State makes its
determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third State for a crime committed
prior to his extradition under this Treaty, without the consent
of the State from which extradition was first obtained.\55\
Finally, Paragraph 3 removes the restrictions of paragraphs
1 and 2 on the detention, trial, or punishment of an extraditee
for additional offenses, or extradition to a third State, (1)
if the extraditee leaves and returns to the Requesting State,
or (2) if the extraditee does not leave the Requesting State
within ten days of being free to do so.
Article 15--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings to expedite their return
to the Requesting State. This article provides that when a
fugitive consents to return to the Requesting State, the person
may be returned to the Requesting State without further
proceedings. The Parties anticipate that in such cases there
would be no need for the formal documents described in Article
6 or further judicial proceedings of any kind.
If a person sought from the United States returns to the
Requesting State before the Secretary of State signs a
surrender warrant, the United States would not view the return
pursuant to a waiver of proceedings under this article as an
``extradition.'' United States practice has long been that the
rule of speciality does not apply when a fugitive waives
extradition and voluntarily returns to the Requested State.
Article 16--Transit
Article 16(1) gives each State the power to authorize
transit through its territory of persons being surrendered to
the other country by third countries.\156\ Requests for transit
are to contain a description of the person whose transit is
proposed and a brief statement of the facts of the case with
respect to which he is being surrendered to the Requesting
State. The paragraph permits the request to be transmitted
either through the diplomatic channel, or directly between the
United States Department of Justice and the Attorney General in
Barbados, or via INTERPOL channels. The negotiators agreed that
the diplomatic channels will be employed as much as possible
for requests of this nature. A person may be detained in
custody during the period of transit.
Article 16(2) provides that no advance authorization is
needed if the person in custody is in transit to one of the
Parties and is traveling by aircraft and no landing is
scheduled in the territory of the other Party. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant such a
request. This paragraph also permits the transit State to
detain a fugitive and a request for transit as received and
executed, so long as the request is received within 96 hours of
the unscheduled landing.
Barbados does not appear to have specific legislation on
this matter, and the Barbados delegation stated that its
Government would seek implementing legislation for this article
in due course.
Article 17--Representation and Expenses
The first paragraph of this article provides that the
United States will represent Barbados in connection with a
request from Barbados for extradition before the courts in this
country, and the Barbados' Attorney General will arrange for
the representation of the United States in connection with
United States extradition requests to Barbados.
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and the translation of documents, which expenses are to be paid
by the Requesting State.\157\ The negotiators recognized that
cases may arise in which the Requesting State may wish to
retain private counsel to assist in the presentation of the
extradition request. It is anticipated that in such cases the
fees of private counsel retained by the Requesting State must
be paid by the Requesting State.
Paragraph 3 provides that neither State shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, or surrender of the fugitive. This includes any
claim by the fugitive for damages, reimbursement, or legal
fees, or other expenses occasioned by the execution of the
extradition request.
Article 18--Consultation
Article 18 of the treaty provides that the United States
Department of Justice and the Attorney General's Chambers in
Barbados may consult with each other with regard to an
individual extradition case or on extradition procedures in
general. A similar provision is found in other recent U.S.
extradition treaties.\158\
During the negotiations, the Barbados delegation raised
concerns that the United States might invoke the Treaty much
more often than Barbados, resulting in an imbalance in the
financial obligations occasioned by extradition proceedings.
While no specific Treaty language was adopted, the United
States agreed that consultations between the Parties under
Article 18 could address extraordinary expenses arising from
the execution of individual extradition requests or requests in
general. At the request of Barbados, the United States
delegation also promised to provide training and technical
assistance to prosecutors and legal officials in Barbados, to
better educate and equip them to implement this Treaty.
Article 19--Application
This Treaty, like most United States extradition treaties
negotiated in the past two decades, is expressly made
retroactive, and accordingly covers offenses that occurred
before the Treaty entered into force, provided that they were
offenses under the laws of both States at the time that they
were committed.
Article 20--Ratification and Entry Into Force
This article contains standard treaty language providing
for the exchange of instruments of ratification at Washington
D.C. The Treaty is to enter into force immediately upon the
exchange.
Paragraph 3 provides that the 1931 Treaty will cease to
have any effect upon the entry into force of the Treaty, but
extradition requests pending when the Treaty enters into force
will nevertheless be processed to conclusion under the 1931
Treaty. Nonetheless, Article 15 (waiver of extradition) of this
Treaty will apply in such proceedings, and Article 14 (rule of
speciality) also applies to persons found extraditable under
the prior Treaty.
Article 21--Termination
This Article contains standard treaty language on the
procedure for termination of the Treaty by either State.
Termination shall become effective six months after notice of
termination is received.
Technical Analysis of The Extradition Treaty Between The United States
of America and the Republic of Cyprus signed June 17, 1996
On June 17, 1996, the United States signed a treaty on
extradition with the Republic of Cyprus (hereinafter ``the
Treaty''). In recent years, the United States has signed
similar treaties with many other countries as part of a highly
successful effort to modernize our law enforcement relations.
The new extradition treaty will replace the treaty now in
force,\159\ and constitutes a major step forward in the United
States' efforts to win the cooperation of key foreign countries
in combating transnational organized crime, terrorism, and drug
trafficking.
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 Republic of Cyprus
has its own internal law,\160\ which will apply to United
States' requests under the Treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
This article, like the first article in every recent United
States extradition treaty, formally obligates each Contracting
State to extradite to the other Contracting State persons
sought for prosecution or convicted of an extraditable offense,
subject to the provisions of the Treaty. The negotiators agreed
that the term ``convicted'' includes instances in which the
person has been found guilty but the sentence has not yet been
imposed.\161\ The negotiators intended to make it clear that
the Treaty applies to persons adjudged guilty who flee prior to
sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what constitutes an extraditable offense. The Treaty, similar
to the recent United States extradition treaties with Jamaica,
Jordan, 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 States 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
under the laws of the United States. 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 Contracting
States pass laws dealing with a new type of criminal activity,
or if the list inadvertently fails to cover a type of criminal
activity punishable in both nations.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition be granted for
attempting or conspiring to commit, aiding or abetting,
counseling or procuring, or otherwise being an accessory to an
extraditable offense. As conspiracy charges are frequently 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. Paragraph 2
creates an exception to the dual criminality rule of paragraph
1 by expressly making inchoate crimes such as conspiracy
extraditable offenses if the object of the inchoate offense is
an extraditable offense pursuant to paragraph 1.
Paragraph 3 reflects the intention of the Contracting
States to interpret the principles of this article broadly.
Judges in foreign countries often are 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
requirements 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 be disregarded in applying the dual criminality
principle. For example, it will ensure that Cyprus' authorities
treat United States mail fraud charges\162\ in the same manner
as fraud charges under state laws, and view the federal crime
of interstate transportation of stolen property\163\ in the
same manner as unlawful possession of stolen property. This
paragraph also requires the 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 the Contracting States. A similar provision is
contained in all recent United States extradition treaties.
Paragraph 4 deals with the fact that federal crimes may
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes the jurisdiction of our courts to
hear criminal cases involving 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.\164\ In Cyprus, however, the government's ability
to prosecute extraterritorial offenses is much more limited.
Paragraph 4 reflects Cyprus' agreement to recognize United
States jurisdiction to prosecute offenses committed outside the
United States if Cyprus' law would permit the Republic of
Cyprus to prosecute similar offenses committed abroad in
corresponding circumstances. If the Requested State's laws do
not so provide, the final sentence of the paragraph states that
extradition may be granted, but the executive authority of the
Requested State has the discretion to deny the request by not
setting in motion the procedure for extradition.
Paragraph 5 states that when extradition has been granted
for an extraditable offense, it shall also be granted for any
other offense specified in the request, if 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 Cyprus agrees to
extradite to the United States a fugitive wanted for
prosecution on a felony charge, the United States may also
obtain extradition for any misdemeanor offenses that have been
charged, as long as those misdemeanors are also recognized as
criminal offenses in the Republic of Cyprus. 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
extraditable offense. This practice is generally desirable from
the standpoint of both the fugitive and the Requesting State in
that it permits all charges to be disposed of more quickly,
thereby facilitating trials while evidence is fresh and
permitting the possibility of concurrent sentences. Similar
clauses are found in recent United States extradition treaties
with Australia, Ireland, Italy, and Costa Rica.
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served.\165\
This Treaty, like most U.S. extradition treaties in the past
two decades, contains no such requirement. Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Treatment of Nationals
Article 3 states that neither State shall be obligated to
extradite its own nationals, but each may do so unless
otherwise provided by its laws and Constitution. The United
States does not deny extradition on the basis of the offender's
citizenship;\166\ our long-standing policy is to draw no
distinction between citizens and others for extradition
purposes. However, Cyprus is specifically prohibited from
extraditing its nationals by its extradition law\167\ and
Constitution.\168\ Therefore, it is unlikely that Cyprus will
actually surrender its nationals to the United States under the
Treaty unless Cyprus' law and Constitution are amended in the
future.
Paragraph 2 states that if the Requested State denies
extradition solely on the basis of the nationality of the
offender, that State must submit the case to its authorities
for prosecution if asked to do so by the Requesting State.\169\
Similar provisions are found in other U.S. extradition
treaties.\170\
Article 4--Political and Military Offenses
Paragraph 1 prohibits extradition for political offenses.
This is a standard provision in recent United States
extradition treaties.\171\
Paragraph 2 describes three categories of offenses that
shall not be considered political offenses.
First, the political offense exception does not apply to
murder or other willful crimes against the person of one of a
Head of State of the Contracting States, or a member of the
Head of State's family.\172\
Second, the political offense exception does not apply to
offenses for which both Contracting States have an obligation
pursuant to a multilateral international agreement either to
extradite the person sought or to submit the case to their
competent authorities for prosecution, such as the United
Nations Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances.\173\
Third, the political offense exception does not apply to
conspiring or attempting to commit, or aiding or abetting the
commission or attempted commission of, any of the foregoing
offenses.
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State determines
that the request is politically motivated.\174\ United States
law and practice have been that the Secretary of State has the
sole discretion to determine whether an extradition request is
based on improper political motivation.\175\
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\176\
Article 5--Prior Prosecution
This article permits extradition when the person sought is
charged by each Contracting State with different offenses
arising out of the same basic transaction.
Paragraph 1, which prohibits extradition if the person
sought has been convicted or acquitted in the Requested State
for the offense for which extradition is requested, is similar
to language present in many United States extradition
treaties.\177\ This provision applies only when the person
sought has been convicted or acquitted in the Requested State
of exactly the same crime that is charged in the Requesting
State. It is not enough that the same facts were involved.
Thus, if the person sought is accused by one Contracting State
of illegally smuggling narcotics into that country, and is
charged by the other Contracting State with unlawfully
exporting the same shipment of drugs, an acquittal or
conviction in one Contracting State does not insulate that
person from extradition because different crimes are involved.
Paragraph 2 makes it clear that neither Contracting State
may refuse to extradite a person sought on the basis that the
Requested State's authorities declined to prosecute the person
or instituted and later discontinued proceedings against the
person. This provision was included because a decision of the
Requested State to forego prosecution or to drop charges
previously filed could be the result of a failure to obtain
sufficient evidence or witnesses for trial, whereas the
Requesting State's prosecution might not suffer from the same
impediments. This provision should enhance the ability of the
Contracting States to extradite to the jurisdiction with the
better chance of a successful prosecution.
Article 6--Capital Punishment
Paragraph 1 permits the Requested State to refuse
extradition in cases in which 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 assurances that the death penalty, if
imposed, will not be carried out. Similar provisions are found
in many recent United States extradition treaties.\178\
Paragraph 2 provides that when the Requesting State gives
assurances in accordance with paragraph 1, the assurances shall
be respected, and the death penalty, if imposed, shall not be
carried out.
The Cyprus delegation insisted on this provision because
its extradition law gives the Minister of Justice the explicit
discretion to deny extradition for crimes not punishable by
death in Cyprus if the person sought ``could be or has been
sentenced to death for that offense in the country by which the
request for his return is made.''\179\ However, while Cyprus
itself has abolished the death penalty, the Cyprus delegation
assured the United States delegation that in a particularly
aggravated case, Cyprus might grant extradition without
requiring assurances under this paragraph.
Article 7--Lapse of Time
Article 6 states that extradition shall not be barred
because of the prescriptive laws of either the Requesting State
or the Requested State.\180\ The U.S. and Cypriot delegations
agreed that a claim that the statute of limitations has expired
is best resolved by the courts of the Requesting State after
the fugitive has been extradited.
Article 8--Extradition Procedures and Required Documents
This article sets forth the documentary and evidentiary
requirements for an extradition request. Similar articles are
present in 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 person sought pursuant to Article 11.
Provisional arrest requests need not be initiated through the
diplomatic channel provided that the requirements of Article 11
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
found guilty 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 ``a copy of the law or a statement of the provisions of the
law describing the essential elements of the offense for which
extradition is requested,'' which enables the Requested State
to determine easily whether the request satisfies the
requirement for dual criminality under Article 2.
Paragraph 3 requires that if the fugitive has not yet been
convicted of the crime for which extradition is requested, the
Requesting State must provide a copy of the arrest warrant, a
copy of the charging document, if available, and ``a statement
of the facts summarizing the testimony of witnesses and
describing physical and documentary evidence and disclosing
reasonable grounds to believe that an offense was committed and
the person sought committed it. For this purpose, the actual
affidavits or testimony of witnesses need not be forwarded.''
This is consistent with extradition law in the United States,
and is similar to language in other United States extradition
treaties. It is meant to satisfy the standard of ``probable
cause,'' under which our courts permit extradition if there is
probable cause to believe that an extraditable offense was
committed and that the fugitive committed it.\181\
This provision should alleviate one of the major practical
problems with extradition from Cyprus. The Treaty currently in
force permits extradition only if ``. . . the evidence be found
sufficient, according to the laws of the High Contracting State
applied to, either to justify the committal of the prisoner for
trial, in the case the crime or offense had been committed in
the territory of such High Contracting party, or to prove that
the person is the identical person convicted by the courts of
the High Contracting State who makes the requisition . . .''.
Cyprus' courts have interpreted this clause to require that a
prima facie case against the defendant be shown before
extradition will be granted. By contrast, U.S. courts interpret
the same language to permit extradition if there is probable
cause to believe that an extraditable offense was committed and
the offender committed it.\182\ The language of Cyprus'
agreement to have extradition under the new Treaty based on a
``reasonable grounds to believe'' standard, rather than a prima
facie case standard, equalizes the burden of proof for
extradition and should improve the United States' ability to
extradite from Cyprus. In Cyprus, as in many European nations,
the law permits extradition without review of any evidence at
all (provided that the arrest warrant and other documents are
presented). Cyprus offered to include this in the new Treaty,
but the U.S. delegation declined because of our Constitutional
requirements.
Paragraph 4 lists the information required to extradite a
person who has been convicted 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.\183\ Subsection (c) states that if
the person sought was found guilty in absentia, the
documentation required for extradition includes both proof of
conviction and the same documentation required in cases in
which no conviction has been obtained. This is consistent with
the long-standing United States policy of requiring such
documentation in the extradition of persons convicted in
absentia.
Paragraph 5 states that if the information communicated by
the Requesting State is insufficient, the Requested State shall
request the necessary supplemental information, and may fix a
time limit for producing such information. This article is
intended to permit the Requesting State to cure any defects in
the request and accompanying materials which are found by a
court in the Requested State or by the attorney acting on
behalf of the Requesting State, and to permit the court, in
appropriate cases, to grant a reasonable continuance to obtain,
translate, and transmit additional materials. A somewhat
similar provision is found in other United States extradition
treaties.\184\
Paragraph 6 states that if the person sought was convicted
in absentia, the Requesting State's executive authority may
refuse extradition unless the Requesting State supplies
information demonstrating that the person has been given an
adequate opportunity to present a defense to the charges. This
paragraph will enable the Secretary of State to carry out the
long-standing United States policy of extraditing persons who
were convicted in absentia only when the person has had or will
have a meaningful opportunity in the Requesting State to be
heard on the issue of guilt or innocence.
Paragraph 7 states that the extradition procedures of the
Requested State shall govern except when this treaty provides
otherwise. This clause was requested by the Government of
Cyprus, and carries forward a principle contained in the treaty
now in force between the United States and Cyprus.\185\
Article 9--Admissibility of Documents
Article 9 governs the authentication procedures for
documents prepared for use in extradition cases.
The article states that when the United States is the
Requesting State, the documents in support of extradition must
be admitted into evidence if they purport to be certified by a
judge, magistrate or officer of the U.S. to be the original or
true copies of such documents and they are authenticated by the
oath of a witness or the seal of the Secretary of State. This
is intended to replace the cumbersome and complicated
procedures for authenticating extradition documents applicable
under the current treaty.\186\
When the request is from the Republic of Cyprus, the
documents must be admitted into evidence if they are certified
by the principal diplomatic or consular officer of the United
States resident in the Republic of Cyprus, in accordance with
United States extradition law.\187\
The third subparagraph of the article permits documents to
be admitted into evidence if they are authenticated in any
other manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition, and the
Requested State is free under subsection (c) to utilize that
information if the information satisfies the ordinary rules of
evidence in that state. This ensures that evidence which is
acceptable under the evidentiary rules of the Requested State
may be used in extradition proceedings even if it is not
otherwise authenticated pursuant to the treaty. This paragraph
also should ensure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing simply because of an
inadvertent error or omission in the authentication process.
Article 10--Translation
Article 10 requires that all documents submitted in support
of the request shall be in the language of either the
Requesting State or the Requested State, but that the Requested
State has the right to insist upon a translation into its own
language.
Article 11--Provisional Arrest
This article describes the process by which a person in one
Contracting State may be arrested and detained while the formal
extradition papers are being prepared by the Requesting State.
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
Cyprus' Ministry of Justice and Public Order. The provision
also indicates that INTERPOL may be used to transmit such a
request.
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 be
notified without delay of the disposition of the request and
the reasons for any denial.
Paragraph 4 provides that a person who has been
provisionally arrested may be released from detention if the
Requesting State does not submit a fully documented request for
extradition to the executive authority of the Requested State
within 60 days of the provisional arrest. When the United
States is the Requested State, the executive authority includes
the Secretary of State and the United States Embassy in
Nicosia.\188\
Although the person sought may be released from custody if
the documents are not received within the sixty-day period or
any extension thereof, the final paragraph in this article
makes clear that the person may be taken into custody again,
and the extradition proceedings may commence, if the formal
request is presented subsequently.
Article 12--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
in whole or in part, the Requested State must provide the
reasons for the denial. If extradition is granted, this article
provides that authorities of the Contracting States shall agree
on a time and place for surrender of the person sought. The
Requesting State must remove the person 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. United States law requires that surrender occur within
two calendar months of a finding that the person is
extraditable,\189\ or of the conclusion of any litigation
challenging that finding,\190\ whichever is later. The law in
the Republic of Cyprus permits the person to apply to a judge
for release if he has not been surrendered within two months of
the first day on which he could have been extradited.\191\
Article 13--Temporary and Deferred Surrender
Occasionally, a person sought for extradition may already
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 and
the full execution of any punishment imposed.
Paragraph 1 provides for the temporary surrender of a
person wanted 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 the Treaty
will be 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 a successful prosecution. Such transfer may also be
advantageous to the person sought in that: (1) it permits
resolution of the charges sooner; (2) subject to the laws in
each state, 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. Similar provisions are found in many recent
extradition treaties.
Paragraph 2 provides that the executive authority of the
Requested State may postpone the extradition proceedings
against a person who is serving a sentence in the Requested
State until the full execution of any punishment that has been
imposed.\192\ The wording of the provision also allows the
Requested State to postpone the surrender of a person facing
prosecution or serving a sentence even if all necessary
extradition proceedings have been completed.
Article 14--Requests for Extradition Made by More Than One State
This article reflects the practice of many recent United
States extradition treaties in listing some of the factors that
the executive authority of the Requested State must consider
when reviewing requests from two or more countries for the
extradition of the same person. For the United States, the
Secretary of State decides to which country the person should
be surrendered;\193\ for the Republic of Cyprus, the decision
is made by the Minister of Justice and Public Order.\194\
Article 15--Seizure and Surrender of Property
This article permits the seizure by the Requested State of
all property--articles, documents and other evidence--connected
with the offense for which extradition is requested to the
extent permitted by the Requested State's internal law. The
article also provides that these objects may be surrendered to
the Requesting State upon the granting of the extradition or
even if extradition cannot be effected due to the death,
disappearance or escape of the person sought. Paragraph 2
states that the Requested State may condition its surrender of
property upon satisfactory assurances that the property will be
returned to the Requested State as soon as practicable.
Paragraph 2 also permits the surrender of property to be
deferred if it is needed as evidence in the Requested State.
Paragraph 3 makes the surrender of property expressly
subject to due respect for the rights of third parties in such
property.
Article 16--Rule of Speciality
This article covers the rule of speciality, 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 speciality prevents
a request for extradition from being used as a subterfuge to
obtain custody of a person for trial or execution of a sentence
on different charges that are not extraditable or properly
documented in the request.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, tried, or punished in the Requesting State for:
(1) the offense for which extradition was granted or a
differently denominated offense based on the same facts,
provided the offense is extraditable or is a lesser included
offense; (2) an offense committed after the extradition; or (3)
an offense for which the executive authority of the Requested
State consents.\195\ Paragraph 1(c)(ii) permits the Contracting
State that is seeking consent to pursue new charges to detain
the person extradited for 90 days or for such longer period as
the Requested State may authorize while the Requested State
makes its determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third state for a crime committed
prior to his extradition under this Treaty without the consent
of the Requested State.
Paragraph 3 removes the restrictions of paragraphs 1 and 2
on the detention, trial or punishment of an extradited person
for additional offenses or extradition to a third state if: (1)
the extradited person leaves the Requesting State after
extradition and voluntarily returns to it; or (2) the
extradited person does not leave the Requesting State within
ten days of being free to do so.
Article 17--Waiver of 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
that when a fugitive consents to surrender to the Requesting
State, the person may be returned to the Requesting State as
expeditiously as possible without further proceedings. The
negotiators anticipated that in such cases, there will be no
need for the formal documentation described in Article 8, 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 the Republic of Cyprus
before the United States Secretary of State signs a surrender
warrant, the United States does not deem the process an
``extradition.'' Long-standing United States policy has been
that the rule of speciality as described in Article 17 does not
apply to such cases.\196\
Article 18--Transit
Paragraph 1 gives each Contracting State the power to
authorize transit through its territory of persons being
surrendered to the other Contracting State by a third state. A
person in transit may be detained in custody during the transit
period. Requests for transit are to contain a description of
the person whose transit is proposed and a brief statement of
the facts of the case with respect to which transit is sought.
The transit request may be submitted through diplomatic
channels, or directly between the United States Department of
Justice and the Republic of Cyprus Ministry of Justice and
Public Order, or the facilities of INTERPOL may be used. A
person may be detained in custody during the period of transit.
Paragraph 2 provides that no advance authorization is
needed if the person in custody is in transit to one of the
Contracting States and is traveling by aircraft and no landing
is scheduled in the territory of the other. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant such a
request. It also permits the transit State to detain a fugitive
until a request for transit is received and executed, so long
as the request is received within 96 hours.
Article 19--Representation and Expenses
Paragraph 1 provides that the United States represents the
Republic of Cyprus in connection with requests from the
Republic of Cyprus for extradition before the courts in this
country, and the Republic of Cyprus Attorney General arranges
for the representation of the United States in connection with
United States extradition requests to the Republic of Cyprus.
Paragraph 2 states that the Requesting State shall bear the
expenses of translation and transportation of the person
sought, and the Requested State shall pay all other expenses.
Paragraph 3 provides that neither Contracting State 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 sought for damages, reimbursement of
legal fees, or other expenses occasioned by the execution of
the extradition request.
Article 20--Consultation
This article provides that the United States Department of
Justice and the Republic of Cyprus Ministry of Justice and
Public Order may consult with each other with regard to an
individual extradition case or extradition procedures in
general. A similar provision is found in other recent United
States extradition treaties.\197\
Article 21--Application
This Treaty, like most United States extradition treaties
negotiated in the past two decades, is expressly made
retroactive and accordingly covers offenses that occurred
before as well as after the Treaty enters into force.
Article 22--Ratification and Entry Into Force
The first two paragraphs of this article contain standard
treaty language providing for the exchange of instruments of
ratification at Nicosia, and indicating that the Treaty will
enter into force immediately upon the exchange.
Paragraph 3 provides that the 1931 Treaty will cease to
have effect upon the entry into force of the Treaty, but
extradition requests pending before the courts when the Treaty
enters into force will nevertheless be processed to conclusion
under the 1931 Treaty. However, Article 16 of this Treaty,
which concerns the rule of speciality, and Article 17, which
deals with simplified extradition, will apply in such
extradition proceedings. This means that persons involved in
such proceedings may waive extradition if they wish, and the
Government of the Requested State will be able to waive the
application of the rule of speciality if it is persuaded that
it is in the interests of justice to do so.
Article 23--Termination
This article contains standard treaty language describing
the procedure for termination of the Treaty by either
Contracting State. Termination shall become effective six
months after the date of such notice.
Technical Analysis of the Extradition Treaty Between the United States
of America and Dominica Signed October 10, 1996
On October 10, 1996, the United States signed a treaty on
extradition with Dominica (hereinafter ``the Treaty''), which
is intended to replace the outdated treaty currently in force
between the two countries\198\ with a modern agreement on the
extradition of fugitives. The new extradition treaty is one of
twelve treaties that the United States negotiated under the
auspices of the Organization of Eastern Caribbean States to
modernize our law enforcement relations in the Eastern
Caribbean. It represents a major step forward in the United
States' efforts to strengthen cooperation with countries in the
region in combating organized crime, transnational terrorism,
and international drug trafficking.
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 for the United States.
Dominica has its own internal legislation on extradition,\199\
which will apply to United States' requests under the Treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
The first article of the Treaty, like the first article in
every recent United States extradition treaty, formally
obligates each Party to extradite to the other persons sought
for prosecution or convicted of an extraditable offense,
subject to the provisions of the remainder of the Treaty. The
article refers to charges ``in'' the Requesting State rather
than ``of'' the Requesting State, since the obligation to
extradite, in cases arising from the United States, would
include state and local prosecutions as well as federal cases.
It was agreed that the term ``convicted'' includes instances in
which the person has been found guilty but a sentence has not
yet been imposed.\200\ The negotiators intended to make it
clear that the Treaty applies to persons adjudged guilty who
flee prior to sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what offense are extraditable. This Treaty, like most recent
United States extradition treaties, including those with
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden
(Supplementary Convention), and Costa Rica, does not list the
offenses for which extradition may be granted. Instead,
paragraph 1 of the article permits extradition for any offense
punishable under the laws of both countries 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 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
a criminal activity punishable in both countries.
During the negotiations, the United States delegation
received assurances from Dominica that extradition would be
possible for such high priority offenses as drug trafficking
(including operating a continuing criminal enterprise, in
violation of Title 21, United States Code, Section 848);
offenses under the racketeering statutes (Title 18, United
States Code, Section 1961-1968), provided the predicate offense
would be an extraditable offense; money laundering; terrorism;
tax fraud and tax evasion; crimes against environmental
protection laws; and any antitrust violations punishable in
both states by more than one year of imprisonment.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting or conspiring to commit, aiding or abetting,
counseling or procuring the commission of, or otherwise being
an accessory before or after the fact to, an extraditable
offense. 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. Dominica has no general
conspiracy statute like Title 18, United States Code, Section
371. Therefore, paragraph 2 creates an exception to the ``dual
criminality'' rule of paragraph 1 by making conspiracy an
extraditable crime if the offense which was the object of the
conspiracy is an extraditable offense.
Paragraph 3 reflects the intention of both countries to
interpret the principles of this article broadly. 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 the 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 be disregarded in
applying the dual criminality principle. For example, Dominica
authorities must treat United States mail fraud charges (Title
18, United States Code, Section 1341) in the same manner as
fraud charges under state laws, and view the federal crime of
interstate transportation of stolen property (Title 18, United
States Code, Section 2314) 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 country. A similar
provision is contained in all recent United States extradition
treaties.
Paragraph 4 deals with the fact that many federal crimes
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes jurisdiction in our courts to
prosecute 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.\201\ In
Dominica, however, the Government's ability to prosecute
extraterritorial offenses is much more limited. Therefore,
Article 2(4) reflects Dominica's agreement to recognize United
States jurisdiction to prosecute offenses committed outside of
the United States if Dominica's law would permit it to
prosecute similar offenses committed outside of it in
corresponding circumstances. If the Requested State's laws do
not so provide, the final sentence of the paragraph states that
extradition may be granted, but the executive authority of the
Requested State has the discretion to deny the request.
Paragraph 5 states 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
have been met except for the requirement that the offense be
punishable by more than one year of imprisonment. For example,
if Dominica 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 that have been charged, as long as those
misdemeanors would also be recognized as criminal offenses in
Dominica. 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 extraditable 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
countries such as Australia, Ireland, Italy, and Costa Rica.
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served.\202\
This Treaty, like most U.S. extradition treaties in the past
two decades, contains no such requirement. Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Nationality
Some countries refuse to extradite their own nationals to
other countries for trial or punishment, or are prohibited from
doing so by their statutes or constitution. The United States
does not deny extradition on the basis of the offender's
citizenship,\203\ and the Dominican extradition law contains no
exception for Dominica's nationals. Therefore, Article 3 of the
Treaty provides that extradition is not to be refused based on
the nationality of the person sought.
Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in United
States extradition treaties.\204\
Paragraph 2 describes three categories of offenses which
shall not be considered to be political offenses.
First, the political offense exception does not apply where
there is a murder or other willful crime against the person of
a Head of State of the Contracting States, or a member of the
Head of State's family.
Second, the political offense exception does not apply to
offenses which are included in a multilateral treaty,
convention, or international agreement that requires the
parties to either extradite the person sought or submit the
matter for prosecution, such as the United Nations Convention
Against the Illicit Traffic in Narcotic Drugs and Psychotropic
Substances.\205\
Third, the political offense exception does not apply to
conspiring or attempting to commit, or to aiding and abetting
the commission or attempted commission of the foregoing
offenses.
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State finds that
the request was politically motivated.\206\ This is consistent
with the long-standing law and practice of the United States,
under which the Secretary of State alone has the discretion to
determine whether an extradition request is based on improper
political motivation.\207\
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\208\
Article 5--Prior Prosecution
This article will permit extradition in situations in which
the fugitive is charged in each country with different offenses
arising out of the same basic transaction.
The first paragraph prohibits extradition if the offender
has been convicted or acquitted in the Requested State for the
offense for which extradition is requested, and is similar to
language present in many United States extradition
treaties.\209\ The parties agreed that this provision applies
only if the offender is convicted or acquitted in the Requested
State of exactly the same crime he is charged with in the
Requesting State. It would not be enough that the same facts
were involved. Thus, if an offender is accused in one State of
illegally smuggling narcotics into the country, and is charged
in the other State of unlawfully exporting the same shipment of
drugs out of that State, an acquittal or conviction in one
state would not insulate the person from extradition to the
other, since different crimes are involved.
Paragraph 2 makes it clear that neither State can refuse to
extradite an offender 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, could result
from failure to obtain sufficient evidence or witnesses
available for trial, whereas the Requesting State might not
suffer from the same impediments. This provision should enhance
the ability to extradite to the jurisdiction which has the
better chance of a successful prosecution.
Article 6--Extradition Procedures and Required Documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is generally
similar to corresponding articles in the United States' most
recent extradition treaties.
The first paragraph requires that each formal request for
extradition be submitted through the diplomatic channel. A
formal extradition request may be preceded by a request for
provisional arrest under Article 9, and provisional arrest
requests need not be initiated through diplomatic channels if
the requirements of Article 9 have been satisfied.
Paragraph 2 outlines the information that must accompany
every request for extradition under the Treaty. Most of the
items listed in this paragraph enable the Requested State to
determine quickly whether extradition is appropriate under the
Treaty. For example, Article 6(2)(c)(i) calls for ``information
as to the provisions of the law describing the essential
elements of the offense for which extradition is requested,''
enabling the requested state to determine easily whether the
request satisfies the requirement for dual criminality under
Article 2. Some of the items listed in paragraph 2, however,
are required strictly for informational purposes. Thus, Article
6(2)(c)(iii) calls for ``information as to the provisions of
law describing any time limit on the prosecution,'' even though
Article 8 of the Treaty expressly states that extradition may
not be denied due to lapse of time for prosecution. The United
States and Dominica delegations agreed that Article
6(2)(c)(iii) should require this information so that the
Requested State would be fully informed about the charges in
the Requesting State.
Paragraph 3 describes the additional information required
when the person is sought for trial in the Requesting State.
Paragraph 3(c) requires that if the fugitive is a person who
has not yet been convicted of the crime for which extradition
is requested, the Requesting State must provide ``such
information as would provide a reasonable basis to believe that
the person sought committed the offense for which extradition
is requested.'' This provision will alleviate one of the major
practical problems with extradition from Dominica. The Treaty
currently in force permits extradition only if ``. . . the
evidence be found sufficient, according to the law of the
Requested Party . . . to justify the committal for trial of the
person sought if the offense of which he is accused had been
committed in the territory of the requested Party. . .''\210\
Dominica's courts have interpreted this clause to require that
a prima facie case against the defendant be shown before
extradition will be granted.\211\ By contrast, U.S. law permits
extradition if there is probable cause to believe that an
extraditable offense was committed and the offender committed
it.\212\ Dominica's agreement to extradite under this new
Treaty based on a ``reasonable basis'' standard eliminates this
imbalance in the burden of proof for extradition and should
significantly improve the United States' ability to extradite
from Dominica.
Paragraph 4 lists the information required to extradite a
person who has already been convicted 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.\213\
Article 7--Admissibility of Documents
Article 7 governs the authentication procedures for
documents prepared for use in extradition cases.
The article states that when the United States is the
Requesting State, the documents in support of extradition must
be authenticated by an officer of the United States Department
of State and certified by the principal diplomatic or consular
officer of Dominica resident in the United States. This is
intended to replace the cumbersome and complicated procedures
for authenticating extradition documents applicable under the
current treaty.\214\ When the request is from Dominica, the
documents must be certified by the principal diplomatic or
consular officer of the United States resident in Barbados
accredited to Dominica, in accordance with United States
extradition law.\215\
The third subparagraph of the article permits documents to
be admitted into evidence if they are authenticated in any
other manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition, and the
Requested State is free under subsection (c) to utilize that
information if the information satisfies the ordinary rules of
evidence in that state. This ensures that evidence which is
acceptable under the evidentiary rules of the Requested State
may be used in extradition proceedings even if it is not
otherwise authenticated pursuant to the treaty. This paragraph
also should insure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing simply because of an
inadvertent error or omission in the authentication process.
Article 8--Lapse of Time
Article 8 states that the decision to deny an extradition
request must be made without regard to provisions of the law
regarding lapse of time in either the requesting or requested
states. The U.S. and Dominican delegations agreed that a claim
that the statute of limitations has expired is best resolved by
the courts of the Requesting State after the fugitive has been
extradited.\216\
Article 9--Provisional Arrest
This article describes the process by which a person in one
country may be arrested and detained while the formal
extradition papers are being prepared by the Requesting
State.\217\
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
the Attorney General in Dominica. The provision also indicates
that INTERPOL may be used to transmit such a request.
Paragraph 2 states the information which the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must be
advised promptly of the outcome of its application and the
reason for any denial.
Paragraph 4 provides that the provisional arrest be
terminated if the Requesting State does not file a fully
documented request for extradition within forty-five days of
the date on which the person was arrested. This period may be
extended for up to an additional fifteen days. When the United
States is the Requested State, it is sufficient for purposes of
this paragraph if the documents are received by the Secretary
of State or the U.S. Embassy in Bridgetown, Barbados.\218\
Paragraph 5 makes it clear that in such cases the person
may be taken into custody again and the extradition proceedings
may commence if the formal request is presented subsequently.
Article 10--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
in whole or in part, the Requested State must provide an
explanation of the reasons for the denial. If extradition is
granted, the article requires that the two States 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 for the same offense. United States law currently
permits the person to request release if he has not been
surrendered within two calendar months of having been found
extraditable,\219\ or of the conclusion of any litigation
challenging that finding,\220\ whichever is later. The law in
Dominica permits the person to apply to a judge for release if
he has not been surrendered within two months of the first day
on which he could have been extradited.\221\
Article 11--Deferred and Temporary Surrender
Occasionally, a person sought for extradition may already
be facing prosecution or serving a sentence on other charges in
the Requested State. Article 11 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 that may have been
imposed.
Paragraph 1 provides for the temporary surrender of a
person wanted 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
provision will be 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 successful prosecution. Such transfer may
also be advantageous to the person sought in that: (1) it
allows him to resolve the charges sooner; (2) subject to the
laws in each state, it may make it possible for him to serve
any sentence in the Requesting State concurrently with the
sentence in the Requested State; and (3) it permits him to
defend against the charges while favorable evidence is fresh
and more likely to be available to him. Similar provisions are
found in many recent extradition treaties.
Paragraph 2 provides that the executive authority of the
Requested State may postpone the extradition proceedings
against a person who is serving a sentence in the Requested
State until the full execution of the punishment that has been
imposed.\222\ The provision's wording makes it clear that the
Requested State may also postpone the surrender of a person
facing prosecution or serving a sentence in that State, even if
all necessary extradition proceedings have been completed.
Article 12--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties and lists some of the factors which
the executive authority of the Requested State must consider in
determining to which country a person should be surrendered
when reviewing requests from two or more States for the
extradition of the same person. For the United States, the
Secretary of State would make this decision;\223\ for Dominica,
the decision would be made by the Attorney General.\224\
Article 13--Seizure and Surrender of Property
This article provides that to the extent permitted by its
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other
evidence--relating to the offense for which extradition is
requested.\225\ The article also provides that these objects
shall be surrendered to the Requesting State upon the granting
of the extradition, or even if extradition cannot be effected
due to the death, disappearance, or escape of the fugitive.
Paragraph 2 states that the Requested State may condition
its surrender of property in such a way as to ensure that the
property is returned as soon as practicable. This paragraph
also permits the Requested State to defer surrender altogether
if the property is needed as evidence in the Requested State.
Paragraph 3 makes the surrender of property expressly
subject to due respect for the rights of third parties to such
property.
Article 14--Rule of Speciality
This article covers the principle known as the rule of
speciality, which is a standard aspect of United States
extradition practice. Designed to ensure that a fugitive
surrendered for one offense is not tried for other crimes, the
rule of speciality prevents a request for extradition from
being used as a subterfuge to obtain custody of a person for
trial or service of sentence on different charges which may not
be extraditable under the Treaty or properly documented at the
time that the request is granted.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, tried, or punished in the Requesting State for (1)
the offense for which extradition was granted, or a differently
denominated offense based on the same facts, provided the
offense is extraditable or is a lesser included offense; (2)
for offenses committed after the extradition; and (3) for other
offenses for which the executive authority of the Requested
State consents.\226\ Article 14(1)(c)(ii) permits the State
which is seeking consent to pursue new charges to detain the
defendant for 90 days while the Requested State makes its
determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third State for a crime committed
prior to his extradition under this Treaty, without the consent
of the State from which extradition was first obtained.\227\
Finally, paragraph 3 removes the restrictions of paragraphs
1 and 2 on the detention, trial, or punishment of an extraditee
for additional offenses, or extradition to a third State, (1)
if the extraditee leaves and returns to the Requesting State,
or (2) if the extraditee does not leave the Requesting State
within ten days of being free to do so.
Article 15--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings and to expedite their
return to the Requesting State. This article provides that when
a fugitive consents to return to the Requesting State, the
person may be returned to the Requesting State without further
proceedings. The Parties anticipate that in such cases there
would be no need for the formal documents described in Article
6 or further judicial proceedings of any kind.
If a person sought from the United States returns to the
Requesting State before the Secretary of State signs a
surrender warrant, the United States would not view the return
pursuant to a waiver of proceedings under this article as an
``extradition.'' United States practice has long been that the
rule of speciality does not apply when a fugitive waives
extradition and voluntarily returns to the Requested State.
Article 16--Transit
Paragraph 1 gives each State the power to authorize transit
through its territory of persons being surrendered to the other
country by third countries.\228\ Requests for transit are to
contain a description of the person whose transit is proposed
and a brief statement of the facts of the case with respect to
which he is being surrendered to the Requesting State. The
paragraph permits the request to be transmitted either through
the diplomatic channel, or directly between the United States
Department of Justice and the Attorney General in Dominica, or
via INTERPOL channels. The negotiators agreed that the
diplomatic channels will be employed as much as possible for
requests of this nature. Under this provision a person may be
detained in custody during the period of transit.
Paragraph 2 provides that no advance authorization is
needed if the person in custody is in transit to one of the
Parties and is traveling by aircraft and no landing is
scheduled in the territory of the other Party. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant such a
request. This paragraph also permits the transit State to
detain a fugitive until a request is received and executed, so
long as the request is received within 96 hours of the
unscheduled landing.
Dominica does not appear to have specific legislation on
this matter, and the Dominica delegation stated that its
Government would seek implementing legislation for this article
in due course.
Article 17--Representation and Expenses
The first paragraph of this article provides that the
United States will represent Dominica in connection with a
request from Dominica for extradition before the courts in this
country, and the Dominica Attorney General will arrange for the
representation of the United States in connection with United
States extradition requests to Dominica.
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and the translation of documents, which expenses are to be paid
by the Requesting State. The negotiators agreed that in some
cases the Requested State might wish to retain private counsel
to assist it in the presentation of the extradition request.
The Attorney General of Dominica has a very small staff, and
might need to enlist outside counsel to aid in handling a
complex, contested international extradition proceeding. It is
anticipated that in such cases the fees of private counsel
retained by the Requested State would be paid by the Requested
State. The negotiators also recognized that cases might arise
in which the Requesting State would wish to retain its own
private counsel to advise it on extradition matters or even
assist in presenting the case, if the Requested State agrees.
In such cases the fees of private counsel retained by the
Requesting State must be paid by the Requesting State.
Paragraph 3 provides that neither State shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, or surrender of the fugitive. This includes any
claim by the fugitive for damages, reimbursement, or legal
fees, or other expenses occasioned by the execution of the
extradition request.
Article 18--Consultation
Article 18 of the treaty provides that the United States
Department of Justice and the Attorney General's Chambers in
Dominica may consult with one another with regard to an
individual extradition case or on extradition procedures in
general. A similar provision is found in other recent U.S.
extradition treaties.\229\
The article also states that consultations shall include
issues involving training and technical assistance. At the
request of Dominica, the United States delegation promised to
recommend training and technical assistance to better educate
and equip prosecutors and legal officials in Dominica to
implement this treaty.
During the negotiations, the Dominica delegation also
expressed concern that the United States might invoke the
Treaty much more often than Dominica, resulting in an imbalance
in the financial obligations occasioned by extradition
proceedings. While no specific Treaty language was adopted, the
United States agreed that consultations between the Parties
under Article 18 could address extraordinary expenses arising
from the execution of individual extradition requests or
requests in general.
Article 19--Application
This Treaty, like most United States extradition treaties
negotiated in the past two decades, is expressly made
retroactive, and accordingly covers offenses that occurred
before the Treaty entered into force, provided that they were
offenses under the laws of both States at the time that they
were committed.
Article 20--Ratification and Entry Into Force
This article contains standard treaty language providing
for the exchange of instruments of ratification at Washington
D.C. The Treaty is to enter into force immediately upon the
exchange.
Paragraph 3 provides that the 1972 Treaty will cease to
have any effect upon the entry into force of the Treaty, but
extradition requests pending when the Treaty enters into force
will nevertheless be processed to conclusion under the 1972
Treaty. Nonetheless, Article 15 (waiver of extradition) of this
Treaty will apply in such proceedings, and Article 14 (rule of
speciality) also applies to persons found extraditable under
the prior Treaty.
Article 21--Termination
This Article contains standard treaty language describing
the procedure for termination of the Treaty by either State.
Termination shall become effective six months after notice of
termination is received.
Technical Analysis of The Extradition Treaty Between The United States
of America and the Republic of France signed April 23, 1996
On April 23, 1996, as the result of negotiations first
undertaken in 1981, the United States signed a new treaty on
extradition with the Republic of France (hereinafter ``the
Treaty''). In recent years, the United States has signed
similar treaties with many other countries as part of a highly
successful effort to modernize our law enforcement relations.
The Treaty will replace the old treaty and supplementary
convention now in force.\230\ It constitutes a major step
forward in efforts by the United States to win the cooperation
of our major European allies in combating transnational
organized crime, terrorism, and drug trafficking.
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 Republic of France
has its own internal law\231\ that will apply to requests by
the United States under the Treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
This article, like the first article in every recent United
States extradition treaty, formally obligates each Contracting
State to extradite to the other Contracting State persons
charged with or found guilty of extraditable offenses, subject
to the provisions of the Treaty.
Article 1 refers to charges brought by authorities ``in''
the Requesting State rather than ``of'' the Requesting State.
It thereby obligates France to extradite fugitives to the
United States in state and local cases as well as federal
cases. The term ``found guilty'' is used instead of
``convicted'' to make clear that the Treaty applies to persons
adjudged guilty who flee the jurisdiction prior to
sentencing.\232\
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what constitutes an extraditable offense. The Treaty, like the
recent United States extradition treaties with Costa Rica,
Ireland, Italy, Jamaica, Jordan, Sweden (Supplementary
Convention), and Thailand, 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 States by deprivation of liberty (i.e.,
imprisonment or other form of detention) for a term of one year
or more, or by a more severe penalty such as capital punishment
(under the laws of the United States). This ``dual
criminality'' approach to defining extraditable offenses
obviates the need to renegotiate the Treaty or to supplement it
if both Contracting States pass laws dealing with a new type of
criminal activity. It also avoids problems resulting if a
treaty list of extraditable offenses inadvertently fails to
cover a type of criminal activity punishable in both nations.
Paragraph 1 also provides that persons who have been
convicted of an extraditable offense and sentenced to
imprisonment may be extradited only if at least six months of
the sentence remain to be served. Most U.S. extradition
treaties signed in recent years do not contain such a
requirement, but provisions of this kind do appear in some
recent United States extradition treaties.\233\
Paragraph 2 follows the practice of recent extradition
treaties in making extraditable both the attempt to commit an
extraditable offense, and otherwise participating in the
commission of an extraditable offense.
It was important to the United States that conspiracy be
extraditable. U.S. criminal cases, particularly those involving
complex transnational criminal activity, frequently use
conspiracy charges. However, many foreign laws on concerted
criminal activity differ from the U.S. offense of conspiracy.
Some U.S. extradition treaties handle this problem by creating
an exception to the dual criminality requirement and expressly
making extraditable both conspiracy and its closest analogue in
the law of our treaty partner.\234\ That approach ultimately
proved unnecessary in this Treaty. The French delegation
assured the U.S. delegation that France would not deny
extradition for U.S. conspiracy charges on dual criminality
grounds if ``conspiracy'' were used in the English and
``complicite'' in the French language text. That accordingly is
what was done.
Paragraph 3 reflects the intention of the Contracting
States to interpret the principles of this article broadly.
Judges in France have sometimes been confused by United States
federal offenses whose elements include use of the mails or
interstate transportation solely to establish federal
jurisdiction. Because there are no similar jurisdictional
requirements in French law, French judges have occasionally
denied extradition on such charges. This paragraph requires
that such U.S. federal jurisdictional elements be disregarded
in applying the dual criminality principle. For example, it
will ensure that French authorities treat United States mail
fraud charges\235\ in the same manner as fraud charges under
state laws, and that they view the federal crime of interstate
transportation of stolen property\236\ in the same manner as
unlawful possession of stolen property. This paragraph also
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 the
terminology used in the laws of the respective Contracting
States to define the offense. Article II of the Supplementary
Convention of 1970 and all recent United States extradition
treaties have similar provisions.
Paragraph 4 deals with crimes committed wholly outside the
territory of a Contracting Party. U.S. jurisprudence recognizes
the jurisdiction of U.S. courts in criminal cases involving
offenses committed outside the United States if (1) they were
intended to have, or did have, effects in this country, or if
(2) the legislative history of the statute shows clear
Congressional intent to assert such jurisdiction.\237\ French
jurisprudence, however, has a different basis for prosecuting
extraterritorial offenses.\238\ Paragraph 4 embodies France's
agreement to recognize United States jurisdiction to prosecute
offenses committed outside the United States if French law
would permit France to prosecute similar offenses committed
abroad in corresponding circumstances.
Paragraph 5 provides that when extradition is requested for
distinct acts, only some of which satisfy the requirements of
paragraphs 1 or 2 of this article, the Requested State shall
extradite both for offenses punishable by a period of
deprivation of liberty of one year or more, and for any other
offense that meets all of the requirements for extradition
except that the offense be punishable by one year or more of
imprisonment. For example, if France agrees to extradite to the
United States a fugitive wanted for prosecution on a felony
charge, the United States can also obtain extradition for
misdemeanor offenses, as long as those misdemeanors are also
recognized as criminal offenses in France. Thus, the Treaty
incorporates recent United States extradition practice by
permitting extradition also for misdemeanors when a fugitive is
extradited for another offense. This practice is generally
desirable both for the prosecuting country and for the
fugitive. It permits all charges against a fugitive to be
disposed of while evidence is fresh and witnesses are
available. It also permits the possibility of concurrent
sentences. Similar provisions are found in recent extradition
treaties with Australia, Costa Rica, Ireland, and Italy.
Paragraph 6 provides that extradition shall be granted, in
accordance with the terms of the Treaty, in matters concerning
tax, customs duty, and foreign exchange offenses if a given
offense satisfies the requirements of Paragraphs 1 and 2 of
this article.
Article 3--Nationality
Paragraph 1 specifically states that neither Contracting
State shall be obliged to extradite its own nationals, but that
the executive authority of the United States shall have the
power to do so if it deems this proper. The United States does
not deny extradition on the basis of a fugitive's
citizenship.\239\ Our long-standing policy is to draw no
distinction between U.S. citizens and others for extradition
purposes. French internal law, however, forbids France to
extradite French nationals.\240\ The French delegation insisted
that the language of the Treaty not suggest in any way that
France would extradite its nationals to the United States
unless French law is amended in the future.
Paragraph 2 requires that if the Requested State refuses
extradition solely on the basis of nationality, it submit the
case to its authorities for prosecution if the Requesting State
asks it to. This provision is critical to the fair
administration of justice. At present, France has no obligation
to prosecute French nationals whose extradition to the United
States it refuses.
Provisions similar to paragraph 2 are found in many other
recent United States extradition treaties.\241\
Article 4--Political Offenses
Paragraph 1 prohibits extradition for political offenses.
This is a common provision in United States extradition
treaties.
The jurisprudence on political offenses in the United
States is quite different from that in France, a fact that has
sometimes caused problems in our extradition relationship over
the years.\242\ The language of the paragraph reflects those
differences by articulating the political offense exception as
it has developed in each system. Specifically it provides that
when France is the Requested State, extradition will be denied
if the offense is a political offense or an offense connected
with a political offense, or if it is an offense inspired by
political motives. When the United States is the Requested
State, extradition will be denied if the offense is a political
offense.
Paragraph 2 describes several categories of offenses that
will not be considered to be political offenses.
Paragraph 2(a) provides that the political offense
exception to extradition does not apply to a murder or other
willful crime against the life of a Head of State of a
Contracting Party or a member of the family of the Head of
State.
Paragraph 2(b) states that the political offense exception
does not apply to offenses for which both Contracting States
have the obligation, pursuant to a multilateral treaty,
convention, or international agreement, either to extradite a
fugitive or to submit the matter for prosecution, such as the
United Nations Convention Against the Illicit Traffic in
Narcotic Drugs and Psychotropic Substances.\243\
Subparagraphs 2(c), (d), (e), and (f) specify that the
Requested State shall not consider any of the following crimes
to be political offenses: a serious offense involving an attack
on the life, physical integrity, or liberty of internationally
protected persons, including diplomatic agents;\244\ an offense
involving kidnapping, the taking of a hostage, or any other
form of unlawful detention;\245\ an offense involving the use
of a bomb, grenade, rocket, automatic firearm, or letter or
parcel bomb, if its use endangers persons; or conspiracy to
commit any of these offenses. Thus, these subparagraphs of the
Treaty create a regime similar to that of the 1977 European
Convention on Terrorism under which certain very serious crimes
often committed by terrorists cannot be deemed political
offenses. This language is similar also to provisions in recent
United States extradition treaties with Canada, Germany, Spain,
and the United Kingdom in each of which the scope of the
political offense exception was substantially narrowed to
eliminate its application to certain crimes.
While Paragraph 2 narrows the ambit of the political
offense exception, Paragraph 3 reaffirms the ability of the
Requested State in limited circumstances to deny extradition
for crimes falling within the Requested State's definition of a
political offense, even if the offense falls within one of the
categories in Paragraph 2. In evaluating the character of the
offense, the Requested State is to take into consideration the
particularly serious nature of the offenses listed in
paragraph2. The factors to be taken into consideration include
(a) that a crime created a collective danger to the life,
physical integrity, or liberty of persons; (b) that it affected
persons foreign to the motives behind it; and (c) that cruel or
treacherous means have been used in the commission of the
offense.\246\
Paragraph 4, which is based on a similar provision in the
U.S.-Ireland Treaty,\247\ states that extradition will not be
granted if there are substantial grounds for believing that the
request was made for the purpose of prosecuting or punishing a
fugitive on account of that fugitive's race, religion,
nationality, or political opinion. When the United States is
the Requested State, this determination will be made by the
executive authorities, i.e., the Secretary of State.\248\ When
France is the Requested State, the determination will be made
by the competent authorities, including the courts.
Article 5--Military Offenses
Article 5 is based on a similar article in the U.S.-Germany
Extradition Treaty.\249\ It provides that the executive
authority of the Requested State may deny extradition if a
request relates to an offense under military law that is not an
offense under ordinary criminal law.\250\
Article 6--Humanitarian Considerations
This article provides that the executive authority of the
United States or the competent authorities in France may refuse
to surrender a fugitive when surrender might entail
exceptionally serious consequences related to age or health.
Article 7--Capital Punishment
Paragraph 1 permits the Requested State to refuse
extradition in cases in which the offense for which extradition
is sought is punishable by death in the Requesting State, but
not in the Requested State, unless the Requesting State
provides assurances that the death penalty will not be imposed,
or, if imposed, will not be carried out.\251\ Similar
provisions are found in many recent United States extradition
treaties.\252\
Paragraph 2 provides that when the Requesting State gives
assurances in accordance with paragraph 1, it shall respect the
assurances and the death penalty, if imposed, shall not be
carried out. This provision was included because French
authorities have previously questioned whether assurances by
the United States Government that the death penalty will not be
imposed on a fugitive whose extradition the United States seeks
for a capital crime are enforceable in United States courts,
particularly in state capital murder cases. Since the treaty is
unquestionably the law of the land in the United States, this
provision settles such questions.
Article 8--Prior Prosecution
This article will permit extradition when each Contracting
State has charged a fugitive with different offenses arising
out of the same acts.
Paragraph 1 prohibits extradition if the fugitive has been
finally convicted or acquitted in the Requested State for the
offense for which extradition is requested. This is similar to
language found in many United States extradition treaties. It
should be noted that the Treaty does not carry forward the
provision in Article IV of the Supplementary Extradition
Convention that entitled the fugitive to avoid extradition if
already tried and acquitted, or punished, for the same acts in
a third state.
Paragraph 2 makes it clear that neither Contracting State
can refuse extradition on the ground that the Requested State's
authorities declined to prosecute the fugitive, or that it
instituted criminal proceedings against the fugitive and
thereafter dismissed them. This provision was included because
the Requested State's decision to forego prosecution, or to
drop charges already filed, could result from unanticipated
unavailability of trial witnesses or other similar factors,
whereas the Requesting State's prosecution might not suffer
from similar impediments. This provision should enhance the
ability of each Contracting State to extradite to the
jurisdiction with the better chance of a successful
prosecution.
Article 9--Lapse of Time
Paragraph 1 states that the Requested State must deny
extradition if, at the time it receives the extradition
request, prosecution of the offense or execution of the penalty
is barred by lapse of time under its law.\253\
Paragraph 2 states that acts committed in the Requesting
State that would interrupt or suspend the so-called
``prescriptive period'' in that state should be taken into
account by the Requested State to the extent possible. A
similar provision is found in Article 2 of the recent
extradition treaty with Belgium.
In the United States, the statute of limitations becomes
irrelevant when criminal charges are filed. In France, however,
the ``period of prescription'' for prosecution continues to run
even when charges have been filed.\254\ In addition, a period
of prescription applies in France to the incarceration of an
offender after sentencing or after escape from incarceration.
The second period of prescription is the same as that for the
underlying offense. Thus, the period of prescription in France
for prosecuting a rape is 10 years. Thereafter, a convicted
rapist must be incarcerated within 10 years of being sentenced.
In the United States, moreover, the statute of limitations
is tolled during the period that a defendant is a fugitive. In
France, however, the flight of a defendant or escape of a
convict does not toll the applicable period of prescription.
Instead, each official act by the prosecution evidencing an
intent to prosecute the defendant or to re-incarcerate an
escaped prisoner ``interrupts'' the period of prescription by
restarting the applicable period of prescription. Thus, if the
United States seeks the extradition of a fugitive for a crime
committed more than three or 10 years previously, as the case
may be, it must demonstrate to France that the U.S. prosecution
effected sufficient ``interruptive acts'' that the period of
prescription would not have expired if the crime and the
``interruptive acts'' had taken place in France. Paragraph 2
obliges the Requested State to take account of such
``interruptive acts'' to the extent possible under its laws.
Article 10--Extradition Procedures and Required Documents
This article sets forth the documentary and evidentiary
requirements for an extradition request. Similar articles are
present in 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
pursuant to Article 13 for the provisional arrest of the
fugitive. Provisional arrest requests need not be initiated
through the diplomatic channel provided that they meet the
requirements of Article 13.
Paragraph 2 outlines the information that must accompany
every request for extradition under the Treaty. Paragraph 3
describes the additional information needed when the fugitive
is sought for trial in the Requesting State. Paragraph 4
describes the information needed, in addition to that specified
in paragraph 2, when the fugitive has already been tried and
found guilty 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 text of the provisions describing the offense for
which extradition is requested.'' This enables the Requested
State to determine whether the request satisfies the
requirement for dual criminality under Article 2.
Paragraph 3 requires that if the fugitive is sought for
prosecution, when the Requesting State is the United States,
copies must be provided of the arrest warrant and the charging
document; when the Requesting State is France, the original or
a copy of the warrant or order of arrest must be submitted, as
well as ``such information as would justify the committal for
trial of the person if the offense had been committed in the
United States.'' It should be noted that this provision is
consistent with long-standing U.S. jurisprudence under which
our courts permit extradition if there is probable cause to
believe that an extraditable offense was committed and the
fugitive committed it.\255\ The provision also reflects a
concession by France, where, as in many European nations, the
evidence against the accused is usually not weighed in
determining whether or not to grant extradition.\256\ France
offered to extradite to the United States without evidence if
the United States would accord it reciprocity. The U.S.
delegation declined, however, because of our Constitutional
requirements.
Paragraph 4 lists the information needed to extradite a
fugitive who has been convicted 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.\257\ Subsection (d) states that if
the person sought was found guilty in absentia, the
documentation required for extradition includes both proof of
conviction and the same documentation required when extradition
is sought for prosecution. This is consistent with the long-
standing United States policy of requiring such documentation
for the extradition of persons convicted in absentia.
Article 11--Admissibility of Documents
Article 11 governs the authentication procedures for
documents prepared for use in extradition cases.
The article provides that when the United States is the
Requesting State, the documents in support of extradition must
be admitted into evidence if they are transmitted through
diplomatic channels. No further authentication is required.
When the request is from the Republic of France, the
documents must be admitted into evidence if they are certified
by the principal diplomatic or consular officer of the United
States resident in the Republic of France, in accordance with
United States extradition law,\258\ or if they are
authenticated in any other manner acceptable by the law of the
United States.
Article 12--Translation
Article 12 requires that all documents submitted in support
of the request shall be translated into the language of the
Requested State.
Article 13--Provisional Arrest
This article describes the process by which a fugitive may
be arrested and detained in a case of urgency while the formal
extradition papers are being prepared by the Requesting State.
Paragraph 1 expressly provides that a request for provisional
arrest may be made directly between the Department of Justice
in the United States and the Ministry of Justice in France,
through the diplomatic channel, or via INTERPOL.
Paragraph 2 sets forth the information that the Requesting
State must provide in support of such a request.
Paragraph 3 provides that the Requesting State must be
notified without delay of the disposition of the application
and the reasons for any denial.
Paragraph 4 provides that a person who has been
provisionally arrested may be released from detention if the
Requesting State does not submit a fully documented request for
extradition to the executive authority of the Requested State
within 60 days of the date of provisional arrest. When the
United States is the Requested State, the Requested State
includes the Secretary of State and the United States Embassy
in Paris.\259\
Although the fugitive may be released from custody if the
documents are not received within the sixty day period or any
extension thereof, the extradition proceedings against the
fugitive need not be dismissed. The final paragraph in this
article makes it clear that the person may be rearrested, and
the extradition proceedings may commence, if the formal request
and supporting documents are received at a later date.
Article 14--Additional Information
Article 14 states that if the information communicated by
the Requesting State is insufficient, the Requested State shall
request the necessary supplemental information and may fix a
time limit for producing such information. This article is
intended to permit the Requesting State to cure any defects in
the request and accompanying materials found either by the
attorney representing the Requesting State or by a court in the
Requested State. It permits the court, in appropriate cases, to
grant a reasonable continuance so that the Requesting State may
obtain, translate, and transmit additional materials. A
somewhat similar provision is found in other United States
extradition treaties.\260\ To expedite delivery of the
additional materials, they may be transmitted directly between
the French Ministry of Justice and the U.S. Department of
Justice, as well as through the diplomatic channel.
Article 15--Decision and Surrender
Paragraph 1 requires that the Requested State promptly
notify the Requesting State of its decision on the extradition
request.
Paragraph 2 provides that if extradition is denied in whole
or in part, the Requested State must provide the reasons for
the denial and, upon request, supply copies of any pertinent
judicial decisions.
Paragraph 3 provides that if extradition is granted,
authorities of the Contracting States must agree on a date and
place for surrender of the fugitive. The Requested State must
also notify the Requesting State of the time that the fugitive
has been in custody pending extradition so that he or she may
be given credit for time served against any sentence imposed
for the offense if the law of the Requesting State so provides.
Paragraph 4 provides that a fugitive may be discharged from
custody if not removed from the territory of the United States
within the time prescribed by U.S. law, which is two calendar
months, of a finding that the fugitive is extraditable,\261\ or
of the conclusion of any litigation challenging that finding,
whichever is later. When France is the Requested State, the
person must be removed within 30 days of the date set for
surrender pursuant to Paragraph 3.\262\
Paragraph 5 provides that if circumstances beyond the
control of either State prevent the surrender of the fugitive,
the Contracting States shall agree on a new date for surrender,
and the provisions of paragraph 4 shall apply anew.
Article 16--Temporary and Deferred Surrender
Occasionally, a person sought for extradition may already
be facing prosecution in the Requested State or serving a
sentence there on other charges. This article allows the
Requested State to defer extradition in such circumstances
until the conclusion of the proceedings against the fugitive
and the full execution of any punishment imposed.
Paragraph 1 provides for the temporary surrender of a
fugitive wanted 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 the Treaty
will be 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 fugitive while evidence and witnesses are more
likely to be available, thereby increasing the likelihood of a
successful prosecution. It may also be advantageous to the
fugitive in that it permits (1) more rapid resolution of the
charges; (2) concurrent service of sentences received in the
Requesting and Requested States; and (3) a more effective
defense while favorable evidence is fresh and more likely to be
available. Similar provisions are found in many recent
extradition treaties.
Paragraph 2 provides that the Requested State may postpone
the extradition proceedings against a fugitive who is being
prosecuted or serving a sentence there until the fugitive has
finished serving any applicable sentence.\263\ The provision
also allows the Requested State to postpone the surrender of
such a fugitive, even if all necessary extradition proceedings
have been completed.
Article 17--Requests for Extradition Made by Several States
This article, like similar provisions in many recent United
States extradition treaties, lists some of the factors that the
executive authority of the Requested State must consider when
reviewing requests from two or more countries for the
extradition of the same fugitive. For the United States, the
Secretary of State decides to which country the person should
be surrendered.\264\ For the Republic of France, the court
makes this decision.\265\
Article 18--Seizure and Surrender of Property
This article allows the Requested State to seize all
property--articles, documents and other evidence--connected
with the offense for which extradition is requested, to the
extent that its internal law permits. The article also provides
that the Requested State may surrender these objects to the
Requesting State when extradition is granted, or even if
extradition cannot be effected due to the fugitive's death,
disappearance, or escape.
Paragraph 2 allows the Requested State to condition its
surrender of property upon satisfactory assurances that the
property will be returned to the Requested State as soon as
practicable. Paragraph 2 also permits the surrender of property
to be deferred if it is needed as evidence in the Requested
State.
Paragraph 3 makes the surrender of property under this
provision expressly subject to due respect for the rights of
third parties in such property.
Article 19--Rule of Speciality
This article covers the rule of speciality, a standard
principle of United States extradition law and practice.
Designed to ensure that a fugitive surrendered for one offense
is not tried for additional crimes, the rule of speciality
prevents a request for extradition from being used as a
subterfuge to obtain custody of a fugitive for trial or for
execution of a sentence on charges that are not extraditable or
were not properly documented in the request.
This article codifies the current formulation of the rule.
Paragraph 1 of this article provides that a person extradited
under the Treaty may not be detained, tried, punished, or
subjected to any restrictions of freedom in the Requesting
State for any act prior to surrender, other than the offense
for which extradition was granted, except (1) when the
Requested State has given its consent, or (2) when the person
extradited had the opportunity to leave the Requesting State
and did not do so within 30 days of release, or left and
returned to it. Paragraph 1 also provides that a request for
the Requested State's waiver of the rule of speciality shall be
accompanied by the documents listed in Article 10 and any
statement of the person extradited regarding the offense for
which consent of the Requested State is requested.
Paragraph 2 states that if the denomination of the offense
for which extradition has been granted is altered after the
extradition or the fugitive is then charged with a differently
denominated offense, prosecution or sentencing shall proceed if
the offense under its new legal description is based on the
same facts contained in the extradition request, and if the
maximum penalty is the same as or less than that described in
the extradition request.
Article 20--Reextradition to a Third State
Persons extradited to either Contracting State cannot be
extradited to a third State unless the Requested State
consents, or unless the person extradited had the opportunity
to leave the Requesting State and failed to do so within 30
days of release, or left and returned to it.
The second paragraph states that the Requested State may
request the documents described in Article 10, as well as any
statements of the extradited person with respect to the offense
for which the Requested State's consent is requested.
Article 21--Transit
Paragraph 1 enables each Contracting State to authorize the
transit through its territory of persons whom a third state is
surrendering to the other Contracting Party. A person in
transit may be held in custody during the transit period. A
request for transit is to contain a description of the person
whose transit is proposed and a brief statement of the facts of
the case. The transit request may be submitted through
diplomatic channels or directly between the United States
Department of Justice and the French Ministry of Justice, or
via INTERPOL.
Paragraph 2 sets forth the procedure for a Contracting
State that seeks to transport a person in custody through the
territory of the other. Under this provision, no authorization
is needed if the person in custody is in transit by aircraft
and no landing is scheduled in the territory of a Contracting
Party. If an unscheduled landing occurs, however, the
Contracting State on whose territory this happens may require a
request for transit and is required to detain the person to be
transported until the request is received and the transit is
effected, so long as the request is received within 96 hours of
the unscheduled landing.
Article 22--Representation and Expenses
One major problem in U.S.-French extradition relations has
been the U.S. government's inability at times to obtain full
information and advice from France in individual extradition
cases and adequate legal representation for U.S. interests
during French judicial proceedings in extradition cases. Under
French law, the French public prosecutor appears in the
proceedings, but as the representative of French interests and
``ordre publique,'' not as the representative of the requesting
state.
To remedy this situation, Paragraph 1 provides that the
Requested State shall advise and assist the Requesting State in
connection with an extradition request, and that such advice
and assistance shall be provided in accordance with the agreed
minute included in the Treaty.
In the agreed minute, each State agrees to provide legal
representation and legal advice to the other to the greatest
degree permitted by its constitution and laws. While France did
not agree to provide legal representation in its courts, it did
agree to supply ``legal advice and representation (including
representation in court) at least equal to that given any other
country pursuant to an extradition relationship whether
existing at the present time or entered into in the future.''
France also promised to make ten significant improvements in
the nature of its assistance. It will:
(1) include in the file presented to the chambre
d'accusation (competent court) any memorandum or
document that the United States transmits in support of
its extradition request. This will enable the United
States to provide the French court with its own legal
arguments for granting the U.S. extradition request if
the French public prosecutor for some reason is
unwilling to support the request;
(2) ask the United States for supplementary information
or explanations if necessary for the request to
succeed. Thus, if the French Government feels that
critical information is missing from the request, it
will ask us for that information, and give us an
opportunity to supplement the request, rather than
merely advising its court to deny the request based on
the perceived defect;
(3) notify the United States when an extradition request
has been transmitted to the French courts for action;
(4) seek to postpone judicial action on the request, if
necessary, to allow the United States to argue its
position and to submit additional memoranda in response
to oral arguments by the defense;
(5) accept communications from representatives of the
U.S. Embassy or the U.S. Department of Justice's Office
of International Affairs regarding the case. The French
Ministry of Justice and, if necessary, the individual
public prosecutor handling the case, will be given the
names of the appropriate U.S. officials;
(6) provide representatives of the U.S. Embassy or
Department of Justice with an opportunity to furnish a
note to the Ministry of Justice on useful legal or
factual data to support the request;
(7) notify the United States when the request has been
transmitted to the appropriate public prosecutor's
office for action;
(8) notify the United States (through the U.S. Embassy in
Paris) of the date when the extradition request may be
heard by the French court;
(9) provide the representatives of the United States with
an opportunity to furnish an additional note to be
included in the file before the hearing; and
(10) provide U.S. Government representatives with an
opportunity to communicate through the Ministry of
Justice with the court prior to the hearing ``to the
same degree permitted to the Ministry of Justice.''
It is hoped that these measures will go far toward
improving the administration of justice in U.S. extradition
requests to France.
Paragraph 2 requires the Requesting State to bear the
expenses of translation and transportation of the fugitive. The
Requested State shall pay all other expenses in that State.
Paragraph 3 provides that neither Contracting State shall
make a pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, or surrender of the fugitive. This includes any
claim by the fugitive for damages, reimbursement of legal fees,
or other expenses occasioned by execution of the extradition
request.
Article 23--Consultation
This article provides that the United States Department of
Justice and the French Ministry of Justice may consult with
each other, directly or via INTERPOL, with regard to either an
individual extradition case or extradition procedures in
general. A similar provision is found in other recent United
States extradition treaties.\266\
Article 24--Application
Paragraph 1 states that this Treaty, like most United
States extradition treaties negotiated in the past two decades,
is expressly made retroactive and covers offenses that occurred
before as well as after the Treaty enters into force.
Paragraph 2 states that the 1909 Treaty and the 1970
Supplementary Convention will cease to have effect upon the
entry into force of the Treaty, but that extradition requests
pending before the courts when the Treaty enters into force
will nevertheless be processed to conclusion under the earlier
agreements.
Article 25--Ratification and Entry Into Force
This article provides for the entry into force of the
treaty on the first day of the second month following the date
on which both Contracting States have notified one another of
the completion of the constitutional procedures for
ratification.
Article 26--Termination
This article contains standard treaty language describing
the procedure for termination of the Treaty by either
Contracting Party. Termination shall become effective six
months after the date of receipt of such notice.
Technical Analysis of the Extradition Treaty Between the United States
of America and Grenada Signed May 30, 1996
On May 30, 1996, the United States signed a treaty on
extradition with Grenada (hereinafter ``the Treaty''), which is
intended to replace the outdated treaty currently in force
between the two countries\267\ with a modern agreement on the
extradition of fugitives. The new extradition treaty is one of
twelve treaties that the United States negotiated under the
auspices of the Organization of Eastern Caribbean States to
modernize our law enforcement relations in the Eastern
Caribbean. It represents a major step forward in the United
States' efforts to strengthen cooperation with countries in the
region in combating organized crime, transnational terrorism,
and international drug trafficking.
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 for the United States.
Grenada has its own internal legislation on extradition,\268\
which will apply to United States' requests under the treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
The first article of the Treaty, like the first article in
every recent United States extradition treaty, formally
obligates each Party to extradite to the other persons sought
for prosecution or convicted of an extraditable offense,
subject to the provisions of the remainder of the Treaty. The
article refers to charges ``in'' the Requesting State rather
than ``of'' the Requesting State, since the obligation to
extradite, in cases arising from the United States, would
include state and local prosecutions as well as federal cases.
It was agreed that the term ``convicted'' includes instances in
which the person has been found guilty but a sentence has not
yet been imposed.\269\ The negotiators intended to make it
clear that the Treaty applies to persons adjudged guilty who
flee prior to sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what offenses are extraditable. This Treaty, like most recent
United States extradition treaties, including those with
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden
(Supplementary Convention), and Costa Rica, does not list the
offenses for which extradition may be granted. Instead,
paragraph 1 of the article permits extradition for any offense
punishable under the laws of both countries 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 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
a criminal activity punishable in both countries.
During the negotiations, the United States delegation
received assurances from Grenada that extradition would be
possible for such high priority offenses as drug trafficking
(including operating a continuing criminal enterprise, in
violation of Title 21, United States Code, Section 848);
offenses under the racketeering statutes (Title 18, United
States Code, Section 1961-1968), provided that the predicate
offense is an extraditable offense; money laundering;
terrorism; tax fraud and tax evasion; crimes against
environmental protection laws; and any antitrust violations
punishable in both states by more than one year of
imprisonment.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting or conspiring to commit, aiding or abetting,
counseling or procuring the commission of, or otherwise being
an accessory before or after the fact to, an extraditable
offense. 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. Grenada has no general
conspiracy statute like Title 18, United States Code, Section
371. Therefore, paragraph 2 creates an exception to the ``dual
criminality'' rule of paragraph 1 by making conspiracy an
extraditable crime if the offense which was the object of the
conspiracy is an extraditable offense.
Paragraph 3 reflects the intention of both countries to
interpret the principles of this article broadly. 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 the 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 be disregarded in
applying the dual criminality principle. For example, Grenada
authorities must treat United States mail fraud charges (Title
18, United States Code, Section 1341) in the same manner as
fraud charges under state laws, and view the federal crime of
interstate transportation of stolen property (Title 18, United
States Code, Section 2314) 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 country. A similar
provision is contained in all recent United States extradition
treaties.
Paragraph 4 deals with the fact that many federal crimes
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes jurisdiction in our courts to
prosecute 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.\270\ In
Grenada, however, the Government's ability to prosecute
extraterritorial offenses is much more limited. Therefore,
Article 2(4) reflects Grenada's agreement to recognize United
States jurisdiction to prosecute offenses committed outside of
the United States if Grenada's law would permit it to prosecute
similar offenses committed outside of it in corresponding
circumstances. If the Requested State's laws do not so provide,
the final sentence of the paragraph states that extradition may
be granted, but the executive authority of the Requested State
has the discretion to deny the request.
Paragraph 5 states 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
have been met except for the requirement that the offense be
punishable by more than one year of imprisonment. For example,
if Grenada 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 that have been charged, as long as those
misdemeanors would also be recognized as criminal offenses in
Grenada. 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 extraditable 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
countries such as Australia, Ireland, Italy, and Costa Rica.
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served.\271\
This Treaty, like most U.S. extradition treaties in the past
two decades, contains no such requirement. Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Nationality
Some countries refuse to extradite their own nationals to
other countries for trial or punishment, or are prohibited from
doing so by their statutes or constitution. The United States
does not deny extradition on the basis of the offender's
citizenship,\272\ and Grenada's extradition law contains no
exception for Grenada's nationals. Therefore, Article 3 of the
Treaty provides that extradition is not to be refused based on
the nationality of the person sought.
Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in United
States extradition treaties.
Paragraph 2 describes three categories of offenses which
shall not be considered to be political offenses.\273\
First, the political offense exception does not apply where
there is a murder or other willful crime against the person of
a Head of State of the Contracting States, or a member of the
Head of State's family.
Second, the political offense exception does not apply to
offenses that are included in a multilateral treaty,
convention, or international agreement, which requires the
parties to either extradite the person sought or submit the
matter for prosecution, such as the United Nations Convention
Against the Illicit Traffic in Narcotic Drugs and Psychotropic
Substances.\274\
Third, the political offense exception does not apply to
conspiring or attempting to commit, or to aiding and abetting
the commission or attempted commission of the foregoing
offenses.
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State finds that
the request was politically motivated.\275\ This is consistent
with the long-standing law and practice of the United States,
under which the Secretary of State alone has the discretion to
determine whether an extradition request is based on improper
political motivation.\276\
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\277\
Article 5--Prior Prosecution
This article will permit extradition in situations in which
the fugitive is charged in each country with different offenses
arising out of the same basic transaction.
The first paragraph prohibits extradition if the offender
has been convicted or acquitted in the Requested State for the
offense for which extradition is requested, and is similar to
language present in many United States extradition
treaties.\278\ The parties agreed that this provision applies
only if the offender is convicted or acquitted in the Requested
State of exactly the same crime he is charged with in the
Requesting State. It would not be enough that the same facts
were involved. Thus, if an offender is accused in one State of
illegally smuggling narcotics into the country, and is charged
in the other State of unlawfully exporting the same shipment of
drugs out of that State, an acquittal or conviction in one
state would not insulate the person from extradition to the
other, since different crimes are involved.
Paragraph 2 makes it clear that neither State can refuse to
extradite an offender 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, could result
from failure to obtain sufficient evidence or witnesses
available for trial, whereas the Requesting State might not
suffer from the same impediments. This provision should enhance
the ability to extradite to the jurisdiction which has the
better chance of a successful prosecution.
Article 6--Extradition Procedures and Required Documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is generally
similar to corresponding articles in the United States' most
recent extradition treaties.
The first paragraph requires that each formal request for
extradition be submitted through the diplomatic channel. A
formal extradition request may be preceded by a request for
provisional arrest under Article 9, and provisional arrest
requests need not be initiated through diplomatic channels if
the requirements of Article 9 have been satisfied.
Paragraph 2 outlines the information which must accompany
every request for extradition under the Treaty. Most of the
items listed in this paragraph enable the Requested State to
determine quickly whether extradition is appropriate under the
Treaty. For example, Article 6(2)(c)(i) calls for ``information
as to the provisions of the law describing the essential
elements of the offense for which extradition is requested,''
enabling the requested state to determine easily whether the
request satisfies the requirement for dual criminality under
Article 2. Some of the items listed in paragraph 2, however,
are required strictly for informational purposes. Thus, Article
6(2)(c)(iii) calls for ``information as to the provisions of
law describing any time limit on the prosecution,'' even though
Article 8 of the Treaty expressly states that extradition may
not be denied due to lapse of time for prosecution. The United
States and Grenada delegations agreed that Article 6(2)(c)(iii)
should require this information so that the Requested State
would be fully informed about the charges in the Requesting
State.
Paragraph 3 describes the additional information requested
when the person is sought for trial in the Requesting State.
Paragraph 3(c) requires that if the fugitive is a person who
has not yet been convicted of the crime for which extradition
is requested, the Requesting State must provide ``such
information as would provide a reasonable basis to believe that
the person sought committed the offense for which extradition
is requested.'' This provision will alleviate one of the major
practical problems with extradition from Grenada. The Treaty
currently in force permits extradition only if ``. . . the
evidence be found sufficient, according to the laws of the High
Contracting Party applied to, either to justify the committal
of the prisoner for trial, in the case the crime or offense had
been committed in the territory of such High Contracting party,
or to prove that the person is the identical person convicted
by the courts of the High Contracting Party who makes the
requisition . . .''.\279\ Grenada's courts have interpreted
this clause to require that a prima facie case against the
defendant be shown before extradition will be granted. \280\ By
contrast, U.S. law permits extradition if there is probable
cause to believe that an extraditable offense was committed and
the offender committed it.\281\ Grenada's agreement to
extradite under the new Treaty based on probable cause
eliminates this imbalance in the burden of proof for
extradition, and should dramatically improve the United States'
ability to extradite from Grenada.
Paragraph 4 lists the information required to extradite a
person who has already been convicted 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.\282\
Article 7--Admissibility of Documents
Article 7 governs the authentication procedures for
documents prepared for use in extradition cases.
The article states that when the United States is the
Requesting State, the documents must be received and admitted
in evidence at extradition proceedings if they are
authenticated by an officer of the United States Department of
State and certified by the principal diplomatic or consular
officer of Grenada resident in the United States. This is
intended to replace the cumbersome and complicated procedures
for authenticating extradition documents applicable under the
current law in Grenada.\283\ When the request is from Grenada,
the documents must be certified by the principal diplomatic or
consular officer of the United States resident in Barbados
accredited to Grenada, in accordance with United States
extradition law.\284\
The third subparagraph of the article permits documents to
be admitted into evidence if they are authenticated in any
other manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition, and the
Requested State is free under subsection (c) to utilize that
information if the information satisfies the ordinary rules of
evidence in that state. This ensures that evidence which is
acceptable under the evidentiary rules of the Requested State
may be used in extradition proceedings even if it is not
otherwise authenticated pursuant to the treaty. This paragraph
also should ensure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing simply because of an
inadvertent error or omission in the authentication process.
Article 8--Lapse of Time
Article 8 states that the decision to deny an extradition
request must be made without regard to provisions of the law
regarding lapse of time in either the requesting or requested
states.\285\ The U.S. and Grenadan delegations agreed that a
claim that the statute of limitations has expired is best
resolved by the courts of the Requesting State after the
fugitive has been extradited.
Article 9--Provisional Arrest
This article describes the process by which a person in one
country may be arrested and detained while the formal
extradition papers are being prepared by the Requesting
State.\286\
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
the Attorney General in Grenada. The provision also indicates
that INTERPOL may be used to transmit such a request.
Paragraph 2 states the information which the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must be
advised promptly of the outcome of its application and the
reason for any denial.
Paragraph 4 provides that the provisional arrest be
terminated if the Requesting State does not file a fully
documented request for extradition within forty-five days of
the date on which the person was arrested. This period may be
extended for up to an additional fifteen days. When the United
States is the Requested State, it is sufficient for purposes of
this paragraph if the documents are received by the Secretary
of State or the U.S. Embassy in Bridgetown, Barbados.\287\
Paragraph 5 makes it clear that in such cases the person
may be taken into custody again and the extradition proceedings
may commence if the formal request is presented subsequently.
Article 10--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
in whole or in part, the Requested State must provide an
explanation of the reasons for the denial. If extradition is
granted, the article provides that the two States shall 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 for the same offense. United States law currently
permits the person to request release if he has not been
surrendered within two calendar months of having been found
extraditable,\288\ or of the conclusion of any litigation
challenging that finding,\289\ whichever is later. The law in
Grenada permits the person to apply to a judge for release if
he has not been surrendered within two months of the first day
on which he could have been extradited.\290\
Article 11--Deferred and Temporary Surrender
Occasionally, a person sought for extradition may already
be facing prosecution or serving a sentence on other charges in
the Requested State. Article 11 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 that may have been
imposed. Similar provisions appear in our recent extradition
treaties with countries such as Jordan, the Bahamas, and
Australia.
Paragraph 1 provides for the temporary surrender of a
person wanted 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
provision will be 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 successful prosecution. Such transfer may
also be advantageous to the person sought in that: (1) it
allows him to resolve the charges sooner; (2) subject to the
laws in each state, it may make it possible for him to serve
any sentence in the Requesting State concurrently with the
sentence in the Requested State; and (3) it permits him to
defend against the charges while favorable evidence is fresh
and more likely to be available to him. Similar provisions are
found in many recent extradition treaties.
Paragraph 2 provides that the executive authority of the
Requested State may postpone the extradition proceedings
against a person who is serving a sentence in the Requested
State until the full execution of the punishment which has been
imposed.\291\ The provision's wording makes it clear that the
Requested State may postpone the surrender of a person facing
prosecution or serving a sentence in that State, even if all
necessary extradition proceedings have been completed.
Article 12--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties and lists some of the factors which
the executive authority of the Requested State must consider in
determining to which country a person should be surrendered
when reviewing requests from two or more States for the
extradition of the same person. For the United States, the
Secretary of State would make this decision.\292\
Article 13--Seizure and Surrender of Property
This article provides that to the extent permitted by its
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other
evidence--relating to the offense for which extradition is
requested.\293\ The article also provides that these objects
shall be surrendered to the Requesting State upon the granting
of the extradition, or even if extradition cannot be effected
due to the death, disappearance, or escape of the fugitive.
Paragraph 2 states that the Requested State may condition
its surrender of property in such a way as to insure that the
rights of third parties are protected and that the property is
returned as soon as practicable. This paragraph also permits
the Requested State to defer surrender altogether if the
property is needed as evidence in the Requested State.
Paragraph 3 makes the surrender of property expressly
subject to due respect for the rights of third parties to such
property.
Article 14--Rule of Speciality
This article covers the principle known as the rule of
specialty, which is a standard aspect of United States
extradition practice. Designed to ensure that a fugitive
surrendered for one offense is not tried for other crimes, the
rule of speciality prevents a request for extradition from
being used as a subterfuge to obtain custody of a person for
trial or service of sentence on different charges which may not
be extraditable under the Treaty or properly documented at the
time that the request is granted.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, tried, or punished in the Requesting State for (1)
the offense for which extradition was granted, or a differently
denominated offense based on the same facts, provided the
offense is extraditable or is a lesser included offense; (2)
for offenses committed after the extradition; and (3) for other
offenses for which the executive authority of the Requested
State consents.\294\ Article 14(1)(c)(ii) permits the State
which is seeking consent to pursue new charges to detain the
defendant for 90 days while the Requested State makes its
determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third State for a crime committed
prior to his extradition under this Treaty, without the consent
of the State from which extradition was first obtained.\295\
Finally, paragraph 3 removes the restrictions of paragraphs
1 and 2 on detention, trial, or punishment of an extraditee for
additional offenses, or extradition to a third State, (1) if
the extraditee leaves and returns to the Requesting State, or
(2) if the extraditee does not leave the Requesting State
within ten days of being free to do so.
Article 15--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings to expedite their return
to the Requesting State. This article provides that when a
fugitive consents to return to the Requesting State, the person
may be returned to the Requesting State without further
proceedings. The Parties anticipate that in such cases there
would be no need for the formal documents described in Article
6 or further judicial proceedings of any kind.
If a person sought from the United States returns to the
Requesting State before the Secretary of State signs a
surrender warrant, the United States would not view the return
pursuant to a waiver of proceedings under this article as an
``extradition.'' United States practice has long been that the
rule of speciality does not apply when a fugitive waives
extradition and voluntarily returns to the Requested
State.\296\
Article 16--Transit
Paragraph 1 gives each State the power to authorize transit
through its territory of persons being surrendered to the other
country by third countries.\297\ Requests for transit are to
contain a description of the person whose transit is proposed
and a brief statement of the facts of the case with respect to
which he is being surrendered to the Requesting State. The
paragraph permits the request to be transmitted either through
the diplomatic channel, or directly between the United States
Department of Justice and the Attorney General in Grenada, or
via INTERPOL channels. The negotiators agreed that the
diplomatic channels will be employed as much as possible for
requests of this nature. A person may be detained in custody
during the period of transit.
Paragraph 2 provides that no advance authorization is
needed if the person in custody is in transit to one of the
Parties and is traveling by aircraft and no landing is
scheduled in the territory of the other Party. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant such a
request. It also permits the transit State to detain a fugitive
until a request for transit is received and executed, so long
as the request is received within 96 hours of the unscheduled
landing.
Grenada does not appear to have specific legislation on
this matter, and the Grenada delegation stated that its
Government would seek implementing legislation for this article
in due course.
Article 17--Representation and Expenses
The first paragraph of this article provides that the
United States will represent Grenada in connection with a
request from Grenada for extradition before the courts in this
country, and that Grenada will arrange for the representation
of the United States in connection with United States
extradition requests to Grenada.
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and Requesting the translation of documents, which expenses are
to be paid by the State. The negotiators agreed that in some
cases the Requested State might wish to retain private counsel
to assist it in the presentation of the extradition request.
The Attorney General of Grenada has a very small staff, and
might need to enlist outside counsel to aid in handling a
complex, contested international extradition proceeding. It is
anticipated that in such cases the fees of private counsel
retained by the Requested State would be paid by the Requested
State. The negotiators also recognized that cases might arise
in which the Requesting State would wish to retain its own
private counsel to advise it on extradition matters or even
assist in presenting the case, if the Requested State agrees.
In such cases the fees of private counsel retained by the
Requesting State must be paid by the Requesting State.
Paragraph 3 provides that neither State shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, or surrender of the fugitive. This includes any
claim by the fugitive for damages, reimbursement, or legal
fees, or other expenses occasioned by the execution of the
extradition request.
Article 18--Consultation
Article 18 of the treaty provides that the United States
Department of Justice and the Attorney General's Chambers in
Grenada may consult with each other with regard to an
individual extradition case or on extradition procedures in
general. A similar provision is found in other recent U.S.
extradition treaties.\298\
The article also states that consultations shall include
issues involving training and technical assistance. At the
request of Grenada, the United States delegation promised to
recommend training and technical assistance to better educate
and equip prosecutors and legal officials in Grenada to
implement this treaty.
During the negotiations, the Grenada delegation also
expressed concern than the United States might invoke the
Treaty much more often than Grenada, resulting in an imbalance
in the financial obligations occasioned by extradition
proceedings. While no specific Treaty language was adopted, the
United States agreed that consultations between the Parties
under Article 18 could address extraordinary expenses arising
from the execution of individual extradition requests or
requests in general.
Article 19--Application
This Treaty, like most other United States extradition
treaties negotiated in the past two decades, is expressly made
retroactive, and accordingly covers offenses that occurred
before the Treaty entered into force, provided that they were
offenses under the laws of both States at the time that they
were committed.
Article 20--Ratification and Entry Into Force
This article contains standard treaty language providing
for the exchange of instruments of ratification at Washington
D.C. The Treaty is to enter into force immediately upon the
exchange.
Paragraph 3 provides that the 1931 Treaty will cease to
have any effect upon the entry into force of the Treaty, but
extradition requests pending when the Treaty enters into force
will nevertheless be processed to conclusion under the 1931
Treaty. Nonetheless, Article 15 (waiver of extradition) of this
Treaty will apply in such proceedings, and Article 14 (rule of
speciality) also applies to persons found extraditable under
the prior Treaty.
Article 21--Termination
This Article contains standard treaty language describing
the procedure for termination of the Treaty by either State,
and the termination shall become effective six months after
notice of termination is received.
Technical Analysis of The Extradition Treaty Between The Government of
the United States of America and the Government of the Republic of
India Signed June 25, 1997
On June 25, 1997, the United States signed a treaty on
extradition with the Republic of India (hereinafter ``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. In
addition, the Treaty will be an important catalyst in providing
more effective cooperation against terrorism, including narco-
terrorism, and drug trafficking. The Treaty is intended to
replace the current extradition treaty in force with respect to
both countries. That treaty, the Treaty for the Mutual
Extradition of Criminals between the United States of America
and Great Britain, signed at London December 22, 1931
(hereinafter ``the 1931 Treaty''), became applicable to India
at the time it gained independence by virtue of the Schedule to
the Indian Independence (International Arrangements) Orders,
1947.\299\ On the same day, there was an exchange of letters
reflecting an understanding concerning the use of the Treaty
for prosecution or punishment only with respect to the ordinary
criminal laws of the Requested State.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
It is anticipated that the Treaty will be implemented in
the United States pursuant to the procedural framework provided
by Title 18 U.S. Code, Section 3184 et seq; implementing
legislation will not be needed. India has extradition
legislation\300\ that will apply to U.S. requests under the
Treaty. According to the Indian delegation which negotiated the
Treaty, Indian constitutional law provides that pre-existing
domestic law takes precedence over a treaty; however it was not
anticipated that any provision of India's domestic law was
inconsistent with the provisions of the Treaty.\301\
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
This article, like the first article in every recent United
States extradition treaty, formally obligates both parties to
the Treaty, referred to therein as the Contracting States, to
extradite to the other, persons formally accused of, charged
with, or convicted of extraditable offenses, subject to the
provisions of the Treaty. The reference to ``formally accused
of'' was included to recognize that in Indian criminal law
practice a person is accused of certain offenses in the
document known as a First Information Report and that reaching
such a stage would be the equivalent, for purposes of this
article, of charging an individual in an indictment under U.S.
practice.
Article 1 refers to persons formally accused of, charged
with, or convicted of an offense by the authorities ``in'' the
Requesting State rather than ``of'' the Requesting State,
thereby obligating each Contracting State to extradite a
fugitive to the other with respect to a prosecution or
conviction in any political subdivision as well as in national
cases. The term ``convicted'' includes instances in which the
person has been found guilty but the sentence has not yet been
imposed.\302\ The Treaty applies to persons adjudged guilty who
flee the jurisdiction prior to sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what offenses are extraditable. The Treaty, like most recent
U.S. extradition treaties, including those with Jamaica,
Jordan, Italy, Ireland, Thailand, Sweden (Supplementary
Convention), and Costa Rica, does not list the offenses for
which extradition may be granted. Instead, paragraph 1 of
Article 2 permits extradition for any offense punishable under
the laws of both Contracting States by deprivation of liberty
(i.e., imprisonment, or other form of detention) for a period
exceeding one year, or by a more severe penalty. 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
Contracting Parties pass laws dealing with a new type of
criminal activity, or if the list inadvertently fails to cover
a criminal activity punishable by both Contracting Parties.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for an attempt or a conspiracy to commit, aiding or abetting,
counseling or procuring the commission of, or being an
accessory before or after the fact to, any extraditable
offense. This is significant because conspiracy charges are
frequently used in U.S. criminal prosecutions, particularly
those involving complex transnational criminal activity. An
offense which falls within one of these categories under
American law is extraditable even if India does not have such a
provision, so long as the underlying offense is extraditable.
Therefore, paragraph 2 creates a basis for extradition, in
addition to the ``dual criminality'' rule of paragraph 1, by
making conspiracy and the other enumerated similar actions an
extraditable crime if the offense, which was the object of the
conspiracy or other action, an extraditable offense.
Paragraph 3 reflects the intention of the Contracting
States to interpret the principles of this article broadly.
Similar provisions to those in subparagraphs (a) and (b) are
contained in all recent U.S. extradition treaties.
Paragraph 3(a) 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.
Paragraph 3(b) addresses the concerns sometimes raised by
foreign authorities regarding jurisdictional elements, such as
use of the mails or interstate transportation, of certain
federal offenses, which are used solely to establish
jurisdiction in federal courts. Because foreign authorities
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 be disregarded in
applying the dual criminality principle. For example, Indian
authorities must treat United States mail fraud charges (18
U.S.C. Sec. 1341) in the same manner as fraud charges under
state laws, and view the federal crime of interstate
transportation of stolen property (18 U.S.C. Sec. 2314) in the
same manner as unlawful possession of stolen property.
Paragraph 3(c) was included in the treaty to make it
unambiguous that criminal tax offenses are extraditable if they
meet the test of dual criminality.
Paragraph 4 recognizes that extraditable crimes can involve
acts committed wholly outside the territory of the Requesting
State. United States jurisprudence recognizes jurisdiction in
our courts to prosecute 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.\303\ In India, an Indian national can be
prosecuted for any crime he commits abroad as if he had
committed the crime in India.\304\ If the dual criminality and
other requirements of the Treaty are satisfied, extradition
shall be granted for a crime or offense, regardless of where
the act or acts constituting the offense occurred.
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
have been met except for the requirement that the offense be
punishable by more than one year of imprisonment. For example,
if India 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 that have been charged, so long as those
misdemeanors would also be recognized as criminal offenses in
India. Thus, the Treaty incorporates recent U.S. extradition
practice by permitting extradition for misdemeanors committed
by a fugitive 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
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.
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served.\305\
This Treaty, like most U.S. extradition treaties in the past
two decades, contains no such requirement. Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Nationality
Authorities in some countries, because of statutory or
constitutional prohibitions or as a matter of policy, will not
extradite a national to another country. Neither the United
States\306\ nor India\307\ denies extradition on the basis of
the fugitive's nationality. Therefore, Article 3 of the Treaty
provides that extradition is not to be refused based on the
nationality of the person sought.
Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in U.S.
extradition treaties and is incorporated in the Indian
Extradition Act.\308\
Paragraph 2, in its eight subparagraphs, describe certain
categories of offenses which, for purposes of the Treaty, shall
not be considered to be political offenses. These categories
include offenses that are the subject of multilateral treaties
to which the Contracting States are parties, pursuant to which
there is an obligation to extradite. By specifically excluding
such offenses from the definition of political offense, the
Contracting States have established a binding bilateral
extradition commitment with respect to such crimes. The
categories are as follows:
Murder or other willful crime against the person of a Head
of State or Government of a Contracting State, or a member of
the family of such Head of State or Government;
Aircraft hijacking offenses, as described in the Convention
on the Suppression of Unlawful Seizures of Aircraft;\309\
Aviation sabotage, as described in the Convention for the
Suppression of Unlawful Acts Against the Safety of Civil
Aviation;\310\
Any crime against an internationally protected person, as
described in the Convention on the Prevention and Punishment of
Crimes Against Internationally Protected Persons, including
Diplomatic Agents;\311\
Hostage taking, as described in the International
Convention against the Taking of Hostages;\312\
Offenses related to illegal drugs, as described in the
Single Convention on Narcotic Drugs,\313\ the Amending Protocol
to the Single Convention,\314\ and the United Nations
Convention Against the Illicit Traffic in Narcotic Drugs and
Psychotropic Substances;\315\
Offenses which obligate the Contracting States to extradite
the person sought or submit the matter for prosecution,
pursuant to any multilateral treaty, convention, or
international agreement to which they are parties; or
Conspiring or attempting to commit, or for aiding and
abetting the commission or attempted commission of any of the
foregoing offenses.
Article 5--Military Offenses and Other Bases for Denial of Extradition
Paragraph 1 provides that the extradition may be denied by
the Requested State if the request relates to a matter that
constitutes an offense only under military, and not criminal,
law.\316\ The paragraph would not bar extradition to stand
trial in a military tribunal for an ordinary criminal offense.
Paragraph 2 of the article provides that extradition shall
not be granted if the executive authority of the Requested
State finds that the request was politically motivated.\317\
This is consistent with the long-standing law and practice of
the United States, under which the Secretary of State alone has
the discretion to determine whether an extradition request is
based on improper political motivation.\318\ Indian law
currently provides for the denial of extradition either if the
offense is of a political character (see Article 4) or if the
fugitive proves, to the satisfaction of the court or the
government, that the request was, in fact, made ``with a view
to try or punish him for an offense of a political
character.''\319\
Article 6--Prior Prosecution
This article permits extradition when the person sought is
charged by each Contracting State with different offenses
arising out of the same basic transaction.
Paragraph 1, which prohibits extradition if the person
sought has been convicted or acquitted in the Requested State
for the offense for which extradition is requested, is similar
to language present in many U.S. extradition treaties.\320\
This provision applies only when the person sought has been
convicted or acquitted in the Requested State of exactly the
same crime that is charged in the Requesting State. It is not
enough that the same facts were involved. This article will not
preclude extradition in situations in which the fugitive is
charged with different offenses in both countries arising out
of the same basic transaction. Thus, if the person sought is
accused by one Contracting State of illegally smuggling
narcotics into that country, and is charged by the other
Contracting State with conspiring to illegally export the same
shipment of drugs, an acquittal or conviction in one
Contracting State does not insulate that person from
extradition because different crimes are involved.
Paragraph 2 makes it clear that neither Contracting State
can refuse to extradite an offender on the ground that the
Requested State's authorities formally declined to prosecute
the offender, or instituted criminal proceedings against the
offender and thereafter elected to discontinue the proceedings.
This provision was included because, for example, the Requested
State might have decided to forego prosecution or to dismiss
charges because of a failure to obtain sufficient evidence for
trial. Such declination or discontinuance should not be a bar
to prosecution in the Requesting State, where substantial
evidence might be available. This provision should enhance the
ability of the Contracting States to extradite to the
jurisdiction with the better chance of a successful
prosecution.
Article 7--Lapse of Time
Article 7 states that extradition shall not be granted when
the prosecution has become barred by lapse of time according to
the laws of the Requesting State.\321\ Thus, if the Requesting
State has a lapse of time provision which has run for the
offense for which extradition is being requested, the Requested
State shall not extradite the fugitive.\322\
Article 8--Capital Punishment
Paragraph 1 permits the Requested State to refuse to
extradite a fugitive in cases in which 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.
This paragraph provides two exceptions to this general rule,
if:
Under subparagraph (a), the extraditable offense
constitutes murder under the laws of the Requested State; or
Under subparagraph (b), the Requesting State provides
assurances that the death penalty, if imposed, will not be
carried out.
Similar provisions are found in many recent U.S.
extradition treaties.\323\
Paragraph 2 of this article provides that when the
Requesting State gives assurances in accordance with paragraph
1, the death penalty, if imposed, shall not be carried out.
Article 9--Extradition Procedures and Required Documents
This article sets out the procedural, documentary and
evidentiary requirements to support an extradition request, and
is generally similar to corresponding articles in recently
concluded U.S. 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
provisional arrest under Article 12, which need not be
initiated through diplomatic channels.
Paragraph 2 delineates the information that should
accompany a request for extradition. Most of the items listed
in Article 9(2) enable the Requested State to determine quickly
whether extradition is appropriate. For example, Article
9(2)(c) calls for ``a statement of the provisions of the law
describing the essential elements of the offense for which
extradition is requested,'' such information should enable the
Requested State to determine easily whether the request
satisfies the requirement for dual criminality under Article 2.
Moreover, Article 9(2)(d) specifies that the extradition
request must be accompanied by ``a statement of the provisions
of the law describing the punishment for the offense,''
enabling the Requested State to determine whether there is a
basis for denying extradition for insufficient punishment under
Article 2. Other requirements listed in Article 9(2), are
needed for informational purposes. These include information
describing the identity and probable location of the person
sought, the facts of the offense and procedural history of the
offense, and other documents, statements and information.
Paragraph 3 requires that, if the fugitive is being sought
for prosecution, the Requesting State must provide a copy of
the warrant or arrest order,\324\ any charging document, and
``such information as would justify the committal for trial of
the person if the offense had been committed in the Requested
State.'' This provision is meant to satisfy the standard of
``probable cause,'' under which our courts permit extradition
if there is probable cause to believe that an extraditable
offense was committed and that the fugitive committed it.\325\
The delegation of India advised the U.S. delegation that under
current Indian law the somewhat higher prima facie standard of
evidence would need to be met for India to extradite under the
Treaty.\326\
Paragraph 4 lists the additional information required to
support a judicial finding of extraditability of a person
convicted of an offense in the Requesting State. This paragraph
makes it clear that once a conviction has been obtained, no
showing of the relevant burden of proof as described in
paragraph 3 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.\327\
Subsection (d) of paragraph 4 states that if the person
sought was found guilty in absentia, the documentation and
information required under paragraph 3 must be submitted with
the extradition request. This provision is consistent with the
long-standing United States policy of requiring such
documentation in the extradition of persons convicted in
absentia.
Article 10--Admissibility of Documents
Article 10 sets forth the authentication procedures for
receiving and admitting into evidence extradition documents.
Subparagraph (a) states that evidence intended for use in
extradition proceedings in India shall be admissible if
certified by the principal diplomatic or consular officer of
India resident in the United States.\328\
Subparagraph (b) states that evidence intended for use in
extradition proceedings in the United States shall be
admissible if certified by the principal diplomatic or consular
officer of the United States resident in India, in accordance
with U.S. extradition laws.\329\
Subparagraph (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 acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition. The Requested
State is free under subsection (c) to utilize that information
if it is admissible under the ordinary rules of evidence in the
Requested State. Moreover, subparagraph (c) should ensure that
relevant evidence, which would normally satisfy the evidentiary
rules of the Requested State, is not excluded at the
extradition hearing simply because of an inadvertent error or
omission in the authentication process.
Article 11--Translation
All documents submitted by either Requesting State in
support of an extradition request shall be in the English
language. If any document in support of a request is written in
another language, it must be accompanied by an English
translation.
Article 12--Provisional Arrest
This article describes the process, known as provisional
arrest, by which a fugitive in one country may be arrested and
detained before a formal extradition request is completed and
submitted by the Requesting State.\330\
Paragraph 1 provides that, ``in a case of urgency,'' a
request for provisional arrest may be made. It provides that
such a request may be made through the diplomatic channel.
INTERPOL facilities may also be used to transmit such a
request.
Paragraph 2 lists the information that the Requesting State
must provide in its request for provisional arrest. The
application needs to set forth identification and location
information, the facts of the case, and a description of the
laws violated and, in addition, include statements that an
arrest warrant and a finding of guilt or judgment of conviction
exists and that the formal extradition request will follow.
Paragraph 3 states that the Requesting State must be
advised promptly of the outcome of its application and the
reason for any denial.
Paragraph 4 provides that the fugitive may be discharged
from custody if the executive authority of the Requested State
does not receive a fully documented extradition request within
sixty days of the provisional arrest. When the United States is
the Requested State, the ``executive authority'' for purposes
of paragraph 4 would include the Secretary of State or the U.S.
Embassy in New Delhi, India.\331\
Although the person arrested may be released from custody
if the documents are not received within the sixty-day period,
the proceedings against the fugitive need not be dismissed.
Paragraph 5 makes it clear that the fugitive may be rearrested
and the extradition proceedings may commence if the formal,
documented request is presented at a later date.
Article 13--Decision and Surrender
This article requires that the Requested State promptly
notify the Requesting State through the diplomatic channel of
its decision on the extradition request. If extradition is
denied in whole or in part, the Requested State must provide
the reasons for the denial. The Requested State shall also
provide any pertinent judicial opinions if the Requesting State
so requests. If the extradition request is granted, the article
provides that the Contracting States shall agree on a time and
place for the surrender of the fugitive.
According to Paragraph 4, if the fugitive is not removed
from the territory of the Requested State within the time
prescribed by the law of the Requested State, the person may be
discharged from custody and the Requested State may
subsequently refuse to extradite for the same offense. U.S. law
requires that surrender occur within two calendar months of the
finding that the offender is extraditable,\332\ or of the
conclusion of any litigation challenging that finding,\333\
whichever is later. India has a similar law, which provides
that a fugitive, in custody for more than two months following
a determination of extraditability, may be discharged by the
High Court, unless sufficient cause is shown to the
contrary.\334\
Article 14--Temporary and Deferred Surrender
Occasionally, a person sought for extradition may already
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 and
the full execution of any punishment imposed.\335\
Paragraph 1 provides for the temporary surrender of a
person wanted 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 the Treaty
shall be kept in custody and returned to the Requested State at
the conclusion of the proceedings in the Requesting State. The
Contracting States shall determine the conditions of the
fugitive's return to the Requested State. Such temporary
surrender furthers the interests of justice in that it permits
a trial of the person sought while evidence and witnesses are
more likely to be available, thereby increasing the likelihood
of a successful prosecution. Such a transfer may 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 extradition proceedings against 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 the
punishment that has been imposed.\336\ The wording of this
provision also makes clear that the Requested State may
postpone the surrender of the person facing prosecution or
serving a sentence even if all necessary extradition
proceedings have been completed.
Article 15--Requests for Extradition Made by Several States
This article, which is also included in many recent U.S.
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. This
article is invoked when multiple extradition requests are made
for a person either for the same offense or for different
extraditable offenses. For the United States, the Secretary of
State makes this decision;\337\ for India, the decision is made
by the Central Government.\338\
Article 16--Seizure and Surrender of Property
This article provides for the seizure by the Requested
State, and surrender to the Requesting State, of all property--
articles, instruments, objects of value, documents, or other
evidence--relating to the offense for which extradition is
requested.\339\ Such actions are subject to the laws of the
Requested State. The article also provides that these objects
shall be so surrendered upon the granting of the extradition,
or even if extradition cannot be effected due to 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 as soon as practicable. The Requested
State may defer surrender altogether if the property is needed
as evidence in the Requested State. Pursuant to paragraph 3,
the obligation to surrender property under this article is
expressly made subject to due respect for the rights of third
parties in such property.
Article 17--Rule of Speciality
This article incorporates the principle known as the rule
of speciality, which is a standard component of U.S. and
international extradition practice. Designed to ensure that a
fugitive surrendered for one offense is not tried for other
crimes, the rule of speciality prevents an extradition request
from being used as a subterfuge to obtain custody of a person
for trial or service of sentence on different charges that may
not be extraditable or properly documented at the time that the
request is granted.
This article codifies the current formulation of the rule.
Paragraph 1 provides that a person extradited under the Treaty
may not be detained, tried, or punished in the Requesting State
except for (a) the offense for which extradition was granted,
or a differently denominated offense based on the same facts,
provided the offense is extraditable or is a lesser included
offense;
(b) an offense committed after the extradition; or
(c) an offense for which the executive authority of the
Requested State consents.\340\
Paragraph 1(c)(i) provides that before giving such consent,
the Requested State may require the Requesting State to
document its request as if it were an ordinary extradition
request under the Treaty. Paragraph 1(c)(ii) permits the
Requesting State to detain the extraditee for 90 days, or for a
longer period authorized by the Requested State, while the
Requested State makes its determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third State for a crime committed
prior to his surrender under this Treaty, without the consent
of the Requested State.\341\
Finally, Paragraph 3 removes the restrictions of paragraphs
1 and 2 on detention, trial, or punishment of an extraditee for
additional offenses, or extradition to a third State, if the
extraditee (1) leaves and returns to the Requesting State, or
(2) does not leave the Requesting State within fifteen days of
being free to do so.
Article 18--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings and to expedite their
return to the Requesting State. This article provides that when
a fugitive consents to return to the Requesting State, the
person may be returned to the Requesting State without further
proceedings, subject to the laws of the Requested State. In
such cases there would be no need for any further formal
documentation or judicial proceedings.
If a person sought for extradition from the United States
returns to the Requesting State before the signing of a
surrender warrant, the United States would not view the return
pursuant to a waiver of proceedings under this Article as an
``extradition.'' U.S. practice has long been that the rule of
speciality does not apply when a fugitive waives extradition
and voluntarily returns to the Requested State.
Article 19--Transit
Paragraph 1 gives each Contracting State the power to
authorize transit through its territory of persons being
surrendered to the other Contracting State by third States, and
to hold such persons in custody during the period of
transit.\342\ Requests for transit are to contain a description
of the person whose transit is proposed and a brief statement
of the facts of the case with respect to which he is being
surrendered to the Requesting State. The paragraph provides
that the request should be transmitted through the diplomatic
channel. It also permits the use of INTERPOL facilities to
transmit the request.
Paragraph 2 provides that no authorization is needed if the
person in custody is being moved by air and no landing is
scheduled in the territory of the other Contracting State.
Should an unscheduled landing occur, a request for transit may
be required at that time, and the Requested State may grant
such a request. It also requires the transit State to detain a
fugitive until a request for transit is received and executed,
so long as the request is received within 96 hours of the
unscheduled landing.
Article 20--Representation and Expenses
Paragraph 1 provides that in extradition proceedings under
the Treaty, the Requested State shall advise, assist, and
appear in court on behalf of the Requesting State. This is
consistent with other U.S. extradition treaties and U.S. law on
the subject.\343\ Thus, the Department of Justice attorneys
will represent the Government of India in connection with a
request from India for extradition before U.S. courts, and
counsel designated by the Indian Government will perform
reciprocal services on behalf of the United States before
Indian courts.
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and the translation of documents, which are paid by the
Requesting State.
Paragraph 3 provides that neither Contracting State shall
make a pecuniary claim against the other arising out of the
arrest, detention, examination, or surrender of any fugitive.
This includes any claim brought on behalf of the fugitive for
damages, reimbursement, or legal fees, or other expenses
occasioned by the execution of the extradition request.
Article 21--Consultation
Article 21 of the treaty provides that the competent
authorities of the United States and India may consult with
each other with regard to an individual extradition case or
extradition procedures in general. Such consultation may occur
directly between the competent authorities or through the
facilities of INTERPOL. A similar provision is found in other
recent U.S. extradition treaties.\344\
Article 22--Mutual Legal Assistance in Extradition
This article provides that each Contracting State shall, to
the extent permitted under its laws, afford the other the
widest measure of mutual assistance in criminal matters in
connection with offenses for which extradition has been
requested.
Article 23--Ratification and Entry into Force
This article contains standard treaty language providing
for ratification and the exchange of instruments of
ratification as soon as possible. The Treaty is to enter into
force immediately upon the exchange.
Paragraph 3 provides that when the Treaty enters into
force, the 1931 Treaty will cease to have effect between the
Contracting States. However, if extradition documents have
already been submitted to the courts of the Requested State at
the time the Treaty enters into force, the 1931 treaty will
remain applicable to such proceedings, although Article 17 of
the Treaty (addressing the Rule of Speciality) will apply.
Article 24--Termination
This Article contains standard treaty language describing
the procedure for termination of the Treaty by either
Contracting State. Either Contracting State may terminate the
Treaty at any time after its entry into force by giving written
notice to the other Contracting State. Termination becomes
effective six months after the date of such notice.\345\
Technical Analysis of the Extradition Treaty Between the United States
of America and St. Christopher and Nevis Signed September 18, 1996
On September 18, 1996, the United States signed a treaty on
extradition with St. Christopher and Nevis (hereinafter ``the
Treaty''), which is intended to replace the outdated treaty
currently in force between the two countries\346\ with a modern
agreement on the extradition of fugitives. The new extradition
treaty is one of twelve treaties that the United States
negotiated under the auspices of the Organization of Eastern
Caribbean States to modernize our law enforcement relations in
the Eastern Caribbean. It represents a major step forward in
the United States' efforts to strengthen cooperation with
countries in the region in combating organized crime,
transnational terrorism, and international drug trafficking.
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 for the United States.
St. Christopher and Nevis has its own internal legislation on
extradition,\347\ which will apply to United States' requests
under the treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
The first article of the Treaty, like the first article in
every recent United States extradition treaty, formally
obligates each Party to extradite to the other persons sought
for prosecution or convicted of an extraditable offense,
subject to the provisions of the remainder of the Treaty. The
article refers to charges ``in'' the Requesting State rather
than ``of'' the Requesting State, since the obligation to
extradite, in cases arising from the United States, would
include state and local prosecutions as well as federal cases.
It was agreed that the term ``convicted'' includes instances in
which the person has been found guilty but a sentence has not
yet been imposed.\348\ The negotiators intended to make it
clear that the Treaty applies to persons adjudged guilty who
flee prior to sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what are extraditable offenses. This treaty, like most recent
United States extradition treaties, including those with
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden
(Supplementary Convention), and Costa Rica, does not list the
offenses for which extradition may be granted. Instead,
paragraph 1 of the article permits extradition for any offense
punishable under the laws of both countries 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 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
a criminal activity punishable in both countries.
During the negotiations, the United States delegation
received assurances from St. Christopher and Nevis that
extradition would be possible for such high priority offenses
as drug trafficking (including operating a continuing criminal
enterprise, in violation of Title 21, United States Code,
Section 848); offenses under the racketeering statutes (Title
18, United States Code, Section 1961-1968); money laundering;
terrorism; crimes against environmental protection laws; and
any antitrust violations punishable in both states by more than
one year of imprisonment.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting or conspiring to commit, aiding or abetting,
counseling or procuring the commission of, or otherwise being
an accessory before or after the fact to, an extraditable
offense. 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. St. Christopher and
Nevis has no general conspiracy statute like Title 18, United
States Code, Section 371. Therefore, paragraph 2 creates an
exception to the ``dual criminality'' rule of paragraph 1 by
making conspiracy an extraditable crime if the offense which
was the object of the conspiracy is an extraditable offense.
Paragraph 3 reflects the intention of both countries to
interpret the principles of this article broadly. 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 the 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 be disregarded in
applying the dual criminality principle. For example, St.
Christopher and Nevis authorities must treat United States mail
fraud charges (Title 18, United States Code, Section 1341) in
the same manner as fraud charges under state laws, and view the
federal crime of interstate transportation of stolen property
(Title 18, United States Code, Section 2314) 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
country. A similar provision is contained in all recent United
States extradition treaties.
Paragraph 4 deals with the fact that many federal crimes
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes jurisdiction in our courts to
prosecute 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.\349\ In
St. Christopher and Nevis, however, the Government's ability to
prosecute extraterritorial offenses is much more limited.
Therefore, Article 2(4) reflects St. Christopher and Nevis's
agreement to recognize United States jurisdiction to prosecute
offenses committed outside of the United States if St.
Christopher and Nevis's law would permit it to prosecute
similar offenses committed outside of it in corresponding
circumstances. If the Requested State's laws do not so provide,
the final sentence of the paragraph states that extradition may
be granted, but the executive authority of the Requested State
has the discretion to deny the request.
Paragraph 5 states 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
have been met except for the requirement that the offense be
punishable by more than one year of imprisonment. For example,
if St. Christopher and Nevis 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 that have been charged, as long as
those misdemeanors would also be recognized as criminal
offenses in St. Christopher and Nevis. 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
extraditable 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 countries such as Australia, Ireland,
Italy, and Costa Rica.
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served.\350\
This Treaty, like most U.S. extradition treaties in the past
two decades, contains no such requirement. Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Nationality
Some countries refuse to extradite their own nationals to
other countries for trial or punishment, or are prohibited from
doing so by their statutes or constitution. The United States
does not deny extradition on the basis of the offender's
citizenship,\351\ and the St. Christopher and Nevis'
extradition law contains no exception for St. Christopher and
Nevis's nationals. Therefore, Article 3 of the Treaty provides
that extradition is not to be refused based on the nationality
of the person sought.
Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in United
States extradition treaties.\352\
Paragraph 2 describes three categories of offenses which
shall not be considered to be political offenses.
First, the political offense exception does not apply where
there is a murder or other willful crime against the person of
a Head of State of the Contracting States, or a member of the
Head of State's family.
Second, the political offense exception does not apply to
offenses that are included in a multilateral treaty,
convention, or international agreement that requires the
parties to either extradite the person sought or submit the
matter for prosecution, such as the United Nations Convention
Against the Illicit Traffic in Narcotic Drugs and Psychotropic
Substances.\353\
Third, the political offense exception does not apply to
conspiring or attempting to commit, or to aiding and abetting
the commission or attempted commission of the foregoing
offenses.
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State finds that
the request was politically motivated.\354\ This is consistent
with the long-standing law and practice of the United States,
under which the Secretary of State alone has the discretion to
determine whether an extradition request is based on improper
political motivation.\355\
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\356\
Article 5--Prior Prosecution
This article will permit extradition in situations in which
the fugitive is charged in each country with different offenses
arising out of the same basic transaction.
The first paragraph prohibits extradition if the offender
has been convicted or acquitted in the Requested State for the
offense for which extradition is requested, and is similar to
language present in many United States extradition
treaties.\357\ The parties agreed that this provision applies
only if the offender is convicted or acquitted in the Requested
State of exactly the same crime he is charged with in the
Requesting State. It would not be enough that the same facts
were involved. Thus, if an offender is accused in one State of
illegally smuggling narcotics into the country, and is charged
in the other State of unlawfully exporting the same shipment of
drugs out of that State, an acquittal or conviction in one
state would not insulate the person from extradition to the
other, since different crimes are involved.
Paragraph 2 makes it clear that neither State can refuse to
extradite an offender 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, could result
from failure to obtain sufficient evidence or witnesses
available for trial, whereas the Requesting State might not
suffer from the same impediments. This provision should enhance
the ability to extradite to the jurisdiction which has the
better chance of a successful prosecution.
Article 6--Extradition Procedures and Required Documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is generally
similar to corresponding articles in the United States' most
recent extradition treaties.
The first paragraph requires that each formal request for
extradition be submitted through the diplomatic channel. A
formal extradition request may be preceded by a request for
provisional arrest under Article 9, and provisional arrest
requests need not be initiated through diplomatic channels if
the requirements of Article 9 have been satisfied.
Paragraph 2 outlines the information which must accompany
every request for extradition under the Treaty. Most of the
items listed in this paragraph enable the Requested State to
determine quickly whether extradition is appropriate under the
Treaty. For example, Article 6(2)(c)(i) calls for ``information
as to the provisions of the law describing the essential
elements of the offense for which extradition is requested,''
enabling the requested state to determine easily whether the
request satisfies the requirement for dual criminality under
Article 2. Some of the items listed in paragraph 2, however,
are required strictly for informational purposes. Thus, Article
6(2)(c)(iii) calls for ``information as to the provisions of
law describing any time limit on the prosecution,'' even though
Article 8 of the Treaty expressly states that extradition may
not be denied due to lapse of time for prosecution. The United
States and St. Christopher and Nevis delegations agreed that
Article 6(2)(c)(iii) should require this information so that
the Requested State would be fully informed about the charges
in the Requesting State.
Paragraph 3 describes the additional information required
when the person is sought for trial in the Requesting State.
Paragraph 3(c) requires that if the fugitive is a person who
has not yet been convicted of the crime for which extradition
is requested, the Requesting State must provide ``such
information as would provide a reasonable basis to believe that
the person sought committed the offense for which extradition
is requested.'' This provision will alleviate one of the major
practical problems with extradition from St. Christopher and
Nevis. The Treaty currently in force permits extradition only
if ``...the evidence be found sufficient, according to the law
of the Requested Party... to justify the committal for trial of
the person sought if the offense of which he is accused had
been committed in the territory of the requested
Party...''\358\ St. Christopher and Nevis's courts have
interpreted this clause to require that a prima facie case
against the defendant be shown before extradition will be
granted.\359\ By contrast, U.S. law permits extradition if
there is probable cause to believe that an extraditable offense
was committed and the offender committed it.\360\ St.
Christopher and Nevis's agreement to extradite under the new
Treaty based on a reasonable basis standard eliminates this
imbalance in the burden of proof for extradition, and should
dramatically improve the United States' ability to extradite
from St. Christopher and Nevis.
Paragraph 4 lists the information required to extradite a
person who has already been convicted of an offense in the
Requesting State. This paragraph makes it clear that once a
conviction has been obtained, no showing of reasonable basis 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.\361\
Article 7--Admissibility of Documents
Article 7 governs the authentication procedures for
documents prepared for use in extradition cases.
The article states that when the United States is the
Requesting State, the documents must be received and admitted
in evidence at extradition proceedings if they are
authenticated by an officer of the United States Department of
State and certified by the principal diplomatic or consular
officer of St. Christopher and Nevis resident in the United
States. This is intended to replace the cumbersome and
complicated procedures for authenticating extradition documents
applicable under the current treaty.\362\ When the request is
from St. Christopher and Nevis, the documents must be certified
by the principal diplomatic or consular officer of the United
States resident in Barbados accredited to St. Christopher and
Nevis, in accordance with United States extradition law.\363\
The third subparagraph of the article permits documents to
be admitted into evidence if they are authenticated in any
other manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition, and the
Requested State is free under subsection (c) to utilize that
information if the information satisfies the ordinary rules of
evidence in that state. This ensures that evidence which is
acceptable under the evidentiary rules of the Requested State
may be used in extradition proceedings even if it is not
otherwise authenticated pursuant to the treaty. This paragraph
also should ensure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing simply because of an
inadvertent error or omission in the authentication process.
Article 8--Lapse of Time
Article 8 states that the decision to deny an extradition
request must be made without regard to provisions of the law
regarding lapse of time in either the requesting or requested
states.\364\ The delegations agreed that a claim that the
statute of limitations has expired is best resolved by the
courts of the Requesting State after the fugitive has been
extradited.
Article 9--Provisional Arrest
This article describes the process by which a person in one
country may be arrested and detained while the formal
extradition papers are being prepared by the Requesting
State.\365\
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
the Attorney General in St. Christopher and Nevis. The
provision also indicates that INTERPOL may be used to transmit
such a request.
Paragraph 2 states the information which the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must be
advised promptly of the outcome of its application and the
reason for any denial.
Paragraph 4 provides that the provisional arrest be
terminated if the Requesting State does not file a fully
documented request for extradition within forty-five days of
the date on which the person was arrested. This period may be
extended for up to an additional fifteen days. When the United
States is the Requested State, it is sufficient for purposes of
this paragraph if the documents are received by the Secretary
of State or the U.S. Embassy in Bridgetown, Barbados.\366\
Paragraph 5 makes it clear that in such a case the person
may be taken into custody again and the extradition proceedings
may commence if the formal request is presented subsequently.
Article 10--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
in whole or in part, the Requested State must provide an
explanation of the reasons for the denial. If extradition is
granted, the article provides that the two States shall 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 for the same offense. United States law currently
permits the person to request release if he has not been
surrendered within two calendar months of having been found
extraditable,\367\ or of the conclusion of any litigation
challenging that finding,\368\ whichever is later. The law in
St. Christopher and Nevis permits the person to apply to a
judge for release if he has not been surrendered within two
months of the first day on which he could have been
extradited.\369\
Article 11--Deferred and Temporary Surrender
Occasionally, a person sought for extradition may already
be facing prosecution or serving a sentence on other charges in
the Requested State. Article 11 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 that may have been
imposed.
Paragraph 1 provides for the temporary surrender of a
person wanted 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
provision will be 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 successful prosecution. Such transfer may
also be advantageous to the person sought in that: (1) it
allows him to resolve the charges sooner; (2) subject to the
laws in each state, it may make it possible for him to serve
any sentence in the Requesting State concurrently with the
sentence in the Requested State; and (3) it permits him to
defend against the charges while favorable evidence is fresh
and more likely to be available to him. Similar provisions are
found in many recent extradition treaties.
Paragraph 2 provides that the executive authority of the
Requested State may postpone the extradition proceedings
against a person who is serving a sentence in the Requested
State until the full execution of the punishment which has been
imposed.\370\ The provision's wording makes it clear that the
Requested State may also postpone the surrender of a person
facing prosecution or serving a sentence in that State, even if
all necessary proceedings have been completed.
Article 12--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties and lists some of the factors which
the executive authority of the Requested State must consider in
determining to which country a person should be surrendered
when reviewing requests from two or more States for the
extradition of the same person. For the United States, the
Secretary of State would make this decision.\371\
Article 13--Seizure and Surrender of Property
This article provides that to the extent permitted by its
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other
evidence--relating to the offense for which extradition is
requested.\372\ The article also provides that these objects
shall be surrendered to the Requesting State upon the granting
of the extradition, or even if extradition cannot be effected
due to the death, disappearance, or escape of the fugitive.
Paragraph 2 states that the Requested State may condition
its surrender of property in such a way as to ensure that the
property is returned as soon as practicable. The paragraph also
permits the Requested State to defer surrender altogether if
the property is needed as evidence in the Requested State.
Paragraph 3 makes the surrender of property expressly
subject to due respect for the rights of third parties to such
property.
Article 14--Rule of Speciality
This article covers the principle known as the rule of
speciality, which is a standard aspect of United States
extradition 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 sentence on different charges which may not be
extraditable under the Treaty or properly documented at the
time that the request is granted.
Since a variety of 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 only be detained, tried, or punished in the
Requesting State for (1) the offense for which extradition was
granted, or a differently denominated offense based on the same
facts, provided the offense is extraditable or is a lesser
included offense; (2) for offenses committed after the
extradition; and (3) for other offenses for which the executive
authority of the Requested State consents.\373\ Article
14(1)(c)(ii) permits the State which is seeking consent to
pursue new charges to detain the defendant for 90 days while
the Requested State makes its determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third State for a crime committed
prior to his extradition under this Treaty without the consent
of the State from which extradition was first obtained.\374\
Finally, paragraph 3 removes the restrictions of paragraphs
1 and 2 on detention, trial, or punishment of an extraditee for
additional offenses, or extradition to a third State, (1) if
the extraditee leaves and returns to the Requesting State, or
(2) if the extraditee does not leave the Requesting State
within ten days of being free to do so.
Article 15--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings to expedite their return
to the Requesting State. This article provides that when a
fugitive consents to return to the Requesting State, the person
may be returned to the Requesting State without further
proceedings. The Parties anticipate that in such cases there
would be no need for the formal documents described in Article
6 or further judicial proceedings of any kind.
If a person sought from the United States returns to the
Requesting State before the Secretary of State signs a
surrender warrant, the United States would not view the return
pursuant to a waiver of proceedings under this article as an
``extradition.'' United States practice has long been that the
rule of speciality does not apply when a fugitive waives
extradition and voluntarily returns to the Requested
State.\375\
Article 16--Transit
Paragraph 1 gives each State the power to authorize transit
through its territory of persons being surrendered to the other
country by third countries.\376\ Requests for transit are to
contain a description of the person whose transit is proposed
and a brief statement of the facts of the case with respect to
which he is being surrendered to the Requesting State. The
paragraph permits the request to be transmitted either through
the diplomatic channel, or directly between the United States
Department of Justice and the Attorney General in St.
Christopher and Nevis, or via INTERPOL channels. The
negotiators agreed that the diplomatic channels will be
employed as much as possible for requests of this nature. A
person may be detained in custody during the period of transit.
Paragraph 2 provides that no advance authorization is
needed if the person in custody is in transit to one of the
Parties and is traveling by aircraft and no landing is
scheduled in the territory of the other Party. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant such a
request. It also permits the transit State to detain a fugitive
until a request for transit is received and executed, so long
as the request is received within 96 hours of the unscheduled
landing.
St. Christopher and Nevis does not appear to have specific
legislation on this matter, and the St. Christopher and Nevis
delegation stated that its Government would seek implementing
legislation for this article in due course.
Article 17--Representation and Expenses
The first paragraph of this article provides that the
United States will represent St. Christopher and Nevis in
connection with a request from St. Christopher and Nevis for
extradition before the courts in this country, and the St.
Christopher and Nevis Attorney General will arrange for the
representation of the United States in connection with United
States extradition requests to St. Christopher and Nevis.
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and the translation of documents, which expenses are to be paid
by the Requesting State. The negotiators agreed that in some
cases the Requested State might wish to retain private counsel
to assist it in the presentation of the extradition request.
The Attorney General of St. Christopher and Nevis has a very
small staff, and might need to enlist outside counsel to aid in
handling a complex, contested international extradition
proceeding. It is anticipated that in such cases the fees of
private counsel retained by the Requested State would be paid
by the Requested State. The negotiators also recognized that
cases might arise in which the Requesting State would wish to
retain its own private counsel to advise it on extradition
matters or even assist in presenting the case, if the Requested
State agrees. In such cases the fees of private counsel
retained by the Requesting State must be paid by the Requesting
State.
Paragraph 3 provides that neither State shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, or surrender of the fugitive. This includes any
claim by the fugitive for damages, reimbursement, or legal
fees, or other expenses occasioned by the execution of the
extradition request.
Article 18--Consultation
Article 18 of the treaty provides that the United States
Department of Justice and the Attorney General in St.
Christopher and Nevis may consult with one another with regard
to an individual extradition case or on extradition procedures
in general. A similar provision is found in other recent U.S.
extradition treaties.\377\
The article also states that consultations shall include
issues involving training and technical assistance. At the
request of St. Christopher and Nevis, the United States
delegation promised to recommend training and technical
assistance to better educate and equip prosecutors and legal
officials in St. Christopher and Nevis to implement this
treaty.
During the negotiations, the St. Christopher and Nevis
delegation also expressed concern that the United States might
invoke the Treaty much more often than St. Christopher and
Nevis, resulting in an imbalance in the financial obligations
occasioned by extradition proceedings. While no specific Treaty
language was adopted, the United States agreed that
consultations between the Parties under Article 18 could
address extraordinary expenses arising from the execution of
individual extradition requests or requests in general.
Article 19--Application
This Treaty, like most other United States extradition
treaties negotiated in the past two decades, is expressly made
retroactive, and accordingly covers offenses that occurred
before the Treaty entered into force, provided that they were
offenses under the laws of both States at the time that they
were committed.
Article 20--Ratification and Entry Into Force
This article contains standard treaty language providing
for the exchange of instruments of ratification at Washington
D.C. The Treaty is to enter into force immediately upon the
exchange.
Paragraph 3 provides that the 1972 Treaty will cease to
have any effect upon the entry into force of the Treaty, but
extradition requests pending when the Treaty enters into force
will nevertheless be processed to conclusion under the 1972
Treaty. Nonetheless, Article 15 (waiver of extradition) of this
Treaty will apply in such proceedings, and Article 14 (rule of
speciality) also applies to persons found extraditable under
the prior Treaty.
Article 21--Termination
This Article contains standard treaty language describing
the procedure for termination of the Treaty by either State.
Termination shall become effective six months after notice of
termination is received.
Technical Analysis of the Extradition Treaty Between the United States
of America and Saint Lucia Signed April 18, 1996
On April, 18, 1996, the United States signed a treaty on
extradition with Saint Lucia (hereinafter ``the Treaty''),
which is intended to replace the outdated treaty currently in
force between the two countries\378\ with a modern agreement on
the extradition of fugitives. The new extradition treaty is one
of twelve treaties that the United States negotiated under the
auspices of the Organization of Eastern Caribbean States to
modernize our law enforcement relations in the Eastern
Caribbean. It represents a major step forward in the United
States' efforts to strengthen cooperation with countries in the
region in combating organized crime, transnational terrorism,
and international drug trafficking.
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 for the United States.
Saint Lucia has its own internal legislation on
extradition,\379\ which will apply to United States' requests
under the treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
The first article of the Treaty, like the first article in
every recent United States extradition treaty, formally
obligates each Party to extradite to the other persons sought
for prosecution or convicted of an extraditable offense,
subject to the provisions of the remainder of the Treaty. The
article refers to charges ``in'' the Requesting State rather
than ``of'' the Requesting State, since the obligation to
extradite, in cases arising from the United States, would
include state and local prosecutions as well as federal cases.
It was agreed that the term ``convicted'' includes instances in
which the person has been found guilty but a sentence has not
yet been imposed.\380\ The negotiators intended to make it
clear that the Treaty applies to persons adjudged guilty who
flee prior to sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what offenses are extraditable. This Treaty, like most recent
United States extradition treaties, including those with
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden
(Supplementary Convention), and Costa Rica, does not list the
offenses for which extradition may be granted. Instead,
paragraph 1 of the article permits extradition for any offense
punishable under the laws of both countries 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 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
a criminal activity punishable in both countries.
During the negotiations, the United States delegation
received assurances from Saint Lucia that extradition would be
possible for such high priority offenses as drug trafficking
(including operating a continuing criminal enterprise, in
violation of Title 21, United States Code, Section 848);
offenses under the racketeering statutes (Title 18, United
States Code, Section 1961-1968) provided that the predicate
offense is an extraditable offense; money laundering;
terrorism; tax fraud and tax evasion; crimes against
environmental protection laws; and any antitrust violations
punishable in both states by more than one year of
imprisonment.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting or conspiring to commit, aiding or abetting,
counseling or procuring the commission of, or otherwise being
an accessory before or after the fact to, an extraditable
offense. 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. Saint Lucia has no
general conspiracy statute like Title 18, United States Code,
Section 371. Therefore, paragraph 2 creates an exception to the
``dual criminality'' rule of paragraph 1 by making conspiracy
an extraditable crime if the offense which was the object of
the conspiracy is an extraditable offense.
Paragraph 3 reflects the intention of both countries to
interpret the principles of this article broadly. 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 the 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 be disregarded in
applying the dual criminality principle. For example, Saint
Lucia authorities must treat United States mail fraud charges
(Title 18, United States Code, Section 1341) in the same manner
as fraud charges under state laws, and view the federal crime
of interstate transportation of stolen property (Title 18,
United States Code, Section 2314) 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
country. A similar provision is contained in all recent United
States extradition treaties.
Paragraph 4 deals with the fact that many federal crimes
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes jurisdiction in our courts to
prosecute 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.\381\ In
Saint Lucia, however, the Government's ability to prosecute
extraterritorial offenses is much more limited. Therefore,
Article 2(4) reflects Saint Lucia's agreement to recognize
United States jurisdiction to prosecute offenses committed
outside of the United States if Saint Lucia's law would permit
it to prosecute similar offenses committed outside of it in
corresponding circumstances. If the Requested State's laws do
not so provide, the final sentence of the paragraph states that
extradition may be granted, but the executive authority of the
Requested State has the discretion to deny the request.
Paragraph 5 states 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
have been met except for the requirement that the offense be
punishable by more than one year of imprisonment. For example,
if Saint Lucia 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 that have been charged, as long as those
misdemeanors would also be recognized as criminal offenses in
Saint Lucia. 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 extraditable 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
countries such as Australia, Ireland, Italy, and Costa Rica.
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served.\382\
This Treaty, like most U.S. extradition treaties in the past
two decades, contains no such requirement. Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Nationality
Some countries refuse to extradite their own nationals to
other countries for trial or punishment, or are prohibited from
doing so by their statutes or constitution. The United States
does not deny extradition on the basis of the offender's
citizenship,\383\ and Saint Lucia's extradition law contains no
exception for Saint Lucian nationals. Therefore, Article 3 of
the Treaty provides that extradition is not to be refused based
on the nationality of the person sought.
Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in United
States extradition treaties.\384\
Paragraph 2 describes three categories of offenses which
shall not be considered to be political offenses.
First, the political offense exception does not apply where
there is a murder or other willful crime against the person of
a Head of State of the Contracting States, or a member of the
Head of State's family.
Second, the political offense exception does not apply to
offenses which are included in a multilateral treaty,
convention, or international agreement that requires the
parties to either extradite the person sought or submit the
matter for prosecution, such as the United Nations Convention
Against the Illicit Traffic in Narcotic Drugs and Psychotropic
Substances.\385\
Third, the political offense exception does not apply to
conspiring or attempting to commit, or to aiding and abetting
the commission or attempted commission of the foregoing
offenses.
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State finds that
the request was politically motivated.\386\ This is consistent
with the long-standing law and practice of the United States,
under which the Secretary of State alone has the discretion to
determine whether an extradition request is based on improper
political motivation.\387\
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\388\
Article 5--Prior Prosecution
This article will permit extradition in situations in which
the fugitive is charged in each country with different offenses
arising out of the same basic transaction.
The first paragraph prohibits extradition if the offender
has been convicted or acquitted in the Requested State for the
offense for which extradition is requested, and is similar to
language present in many United States extradition
treaties.\389\ The parties agreed that this provision applies
only if the offender is convicted or acquitted in the Requested
State of exactly the same crime he is charged with in the
Requesting State. It would not be enough that the same facts
were involved. Thus, if an offender is accused in one State of
illegally smuggling narcotics into the country, and is charged
in the other State of unlawfully exporting the same shipment of
drugs out of that State, an acquittal or conviction in one
state would not insulate the person from extradition to the
other, since different crimes are involved.
Paragraph 2 makes it clear that neither State can refuse to
extradite an offender 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, could result
from failure to obtain sufficient evidence or witnesses
available for trial, whereas the Requesting State might not
suffer from the same impediments. This provision should enhance
the ability to extradite to the jurisdiction which has the
better chance of a successful prosecution.
Article 6--Extradition Procedures and Required Documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is generally
similar to corresponding articles in the United States' most
recent extradition treaties.
The first paragraph requires that each formal request for
extradition be submitted through the diplomatic channel. A
formal extradition request may be preceded by a request for
provisional arrest under Article 9, and provisional arrest
requests need not be initiated through diplomatic channels if
the requirements of Article 9 are met.
Paragraph 2 outlines the information which must accompany
every request for extradition under the Treaty. Most of the
items listed in this paragraph enable the Requested State to
determine quickly whether extradition is appropriate under the
Treaty. For example, Article 6(2)(c)(i) calls for ``information
as to the provisions of the law describing the essential
elements of the offense for which extradition is requested,''
enabling the requested state to determine easily whether the
request satisfies the requirement for dual criminality under
Article 2. Some of the items listed in paragraph 2, however,
are required strictly for informational purposes. Thus, Article
6(2)(c)(iii) calls for ``information as to the provisions of
law describing any time limit on the prosecution,'' even though
Article 8 of the Treaty expressly states that extradition may
not be denied due to lapse of time for prosecution. The United
States and Saint Lucia delegations agreed that Article
6(2)(c)(iii) should require this information so that the
Requested State would be fully informed about the charges in
the Requesting State.
Paragraph 3 describes the additional information required
when the person is sought for trial in the Requesting State.
Paragraph 3(c) requires that if the fugitive is a person who
has not yet been convicted of the crime for which extradition
is requested, the Requesting State must provide ``such
information as would provide a reasonable basis to believe that
the person sought committed the offense for which extradition
is requested.'' This provision will alleviate one of the major
practical problems with extradition from Saint Lucia. The
Treaty currently in force permits extradition only if ``...the
evidence be found sufficient, according to the law of the
Requested Party... to justify the committal for trial of the
person sought if the offense of which he is accused had been
committed in the territory of the requested Party...''\390\ The
courts in many countries interpret this to require that
sufficient evidence to convict the fugitive be shown before
extradition will be granted.\391\ By contrast, U.S. law permits
extradition if there is probable cause to believe that an
extraditable offense was committed and the offender committed
it.\392\ Saint Lucia's agreement to extradite under the new
Treaty based on a ``reasonable basis'' standard eliminates this
imbalance in the burden of proof for extradition, and should
dramatically improve the United States' ability to extradite
from Saint Lucia. It also will be a useful precedent in dealing
with other former British colonies.
Paragraph 4 lists the information required to extradite a
person who has already been convicted 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.\393\
Article 7--Admissibility of Documents
Article 7 governs the authentication procedures for
documents prepared for use in extradition cases.
The article states that when the United States is the
Requesting State, the documents in support of extradition must
be authenticated by an officer of the United States Department
of State and certified by the principal diplomatic or consular
officer of Saint Lucia resident in the United States. This is
intended to replace the cumbersome and complicated procedures
for authenticating extradition documents applicable under the
current treaty.\394\ When the request is from Saint Lucia, the
documents must be certified by the principal diplomatic or
consular officer of the United States resident in Barbados
accredited to Saint Lucia, in accordance with United States
extradition law.\395\
The third subparagraph of the article permits documents to
be admitted into evidence if they are authenticated in any
other manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition, and the
Requested State is free under subsection (c) to utilize that
information if the information satisfies the ordinary rules of
evidence in that state. This ensures that evidence which is
acceptable under the evidentiary rules of the Requested State
may be used in extradition proceedings even if it is not
otherwise authenticated pursuant to the treaty. This paragraph
also should ensure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing simply because of an
inadvertent error or omission in the authentication process.
Article 8--Lapse of Time
Article 8 states that the decision to deny an extradition
request must be made without regard to provisions of the law
regarding lapse of time in either the requesting or requested
states.\396\ The United States and Saint Lucian delegations
agreed that a claim that the statute of limitations has expired
is best resolved by the courts of the Requesting State after
the fugitive has been extradited.
Article 9--Provisional Arrest
This article describes the process by which a person in one
country may be arrested and detained while the formal
extradition papers are being prepared by the Requesting
State.\397\
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
the Attorney General in Saint Lucia. The provision also
indicates that INTERPOL may be used to transmit such a request.
Paragraph 2 states the information which the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must be
advised promptly of the outcome of its application and the
reason for any denial.
Paragraph 4 provides that the provisional arrest be
terminated if the Requesting State does not file a fully
documented request for extradition within forty-five days of
the date on which the person was arrested. This period may be
extended for up to an additional fifteen days. When the United
States is the Requested State, it is sufficient for purposes of
this paragraph if the documents are received by the Secretary
of State or the U.S. Embassy in Bridgetown, Barbados.\398\
Paragraph 5 makes it clear that in such cases the person
may be taken into custody again and the extradition proceedings
may commence if the formal request is presented subsequently.
Article 10--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
in whole or in part, the Requested State must provide an
explanation of the reasons for the denial. If extradition is
granted, the article provides that the two States should 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 for the same offense. United States law permits
the person to request release if he has not been surrendered
within two calendar months of having been found
extraditable,\399\ or of the conclusion of any litigation
challenging that finding,\400\ whichever is later. The law in
Saint Lucia permits the person to apply to a judge for release
if he has not been surrendered within two months of the first
day on which he could have been extradited.\401\
Article 11--Deferred and Temporary Surrender
Occasionally, a person sought for extradition may already
be facing prosecution or serving a sentence on other charges in
the Requested State. Article 11 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 that may have been
imposed.
Paragraph 1 provides for the temporary surrender of a
person wanted 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
provision will be 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 successful prosecution. Such transfer may
also be advantageous to the person sought in that: (1) it
allows him to resolve the charges sooner; (2) subject to the
laws of each state, it may make it possible for him to serve
any sentence in the Requesting State concurrently with the
sentence in the Requested State; and (3) it permits him to
defend against the charges while favorable evidence is fresh
and more likely to be available to him. Similar provisions are
found in many recent extradition treaties.
Paragraph 2 provides that the executive authority of the
Requested State may postpone the extradition proceedings
against a person who is serving a sentence in the Requested
State until the full execution of the punishment which has been
imposed. The provision's wording makes it clear that the
Requested State may also postpone the surrender of a person
facing prosecution or serving a sentence even if all necessary
extradition proceedings have been completed.\402\
Article 12--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties and lists some of the factors which
the executive authority of the Requested State must consider in
determining to which country a person should be surrendered
when reviewing requests from two or more States for the
extradition of the same person. For the United States, the
Secretary of State would make this decision;\403\ for Saint
Lucia, the decision would be made by the Attorney-General.\404\
Article 13--Seizure and Surrender of Property
This article provides that to the extent permitted by its
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other
evidence--relating to the offense for which extradition is
requested.\405\ The article also provides that these objects
shall be surrendered to the Requesting State upon the granting
of the extradition, or even if extradition cannot be effected
due to the death, disappearance, or escape of the fugitive.
Paragraph 2 states that the Requested State may condition
its surrender of property in such a way as to insure that the
property is returned as soon as practicable. This paragraph
also permits the Requested State to defer surrender altogether
if the property is needed as evidence in the Requested State.
Paragraph 3 makes the surrender of property expressly
subject to due respect for the rights of third parties to such
property.
Article 14--Rule of Speciality
This article covers the principle known as the rule of
speciality, which is a standard aspect of United States
extradition practice. Designed to ensure that a fugitive
surrendered for one offense is not tried for other crimes, the
rule of speciality prevents a request for extradition from
being used as a subterfuge to obtain custody of a person for
trial or service of sentence on different charges which may not
be extraditable under the Treaty or properly documented at the
time that the request is granted.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, tried, or punished in the Requesting State for (1)
the offense for which extradition was granted, or a differently
denominated offense based on the same facts, provided the
offense is extraditable or is a lesser included offense; (2)
for offenses committed after the extradition; and (3) for other
offenses for which the executive authority of the Requested
State consents.\406\ Article 14(1)(c)(ii) permits the State
which is seeking consent to pursue new charges to detain the
defendant for 90 days while the Requested State makes its
determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third State for a crime committed
prior to his extradition under this Treaty, without the consent
of the State from which extradition was first obtained.\407\
Finally, paragraph 3 removes the restrictions of paragraphs
1 and 2 on detention, trial, or punishment of an extraditee for
additional offenses, or extradition a third State, (1) if the
extraditee leaves and returns to the Requesting State, or (2)
if the extraditee does not leave the Requesting State within
ten days of being free to do so.
Article 15--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings to expedite their return
to the Requesting State. This article provides that when a
fugitive consents to return to the Requesting State, the person
may be returned to the Requesting State without further
proceedings. The Parties anticipate that in such cases there
would be no need for the formal documents described in Article
6 or further judicial proceedings of any kind.
If a person sought from the United States returns to the
Requesting State before the Secretary of State signs a
surrender warrant, the United States would not view the return
pursuant to a waiver of proceedings under this article as an
``extradition.'' United States practice has long been that the
rule of speciality does not apply when a fugitive waives
extradition and voluntarily returns to the Requested
State.\408\
Article 16--Transit
Paragraph 1 gives each State the power to authorize transit
through its territory of persons being surrendered to the other
country by third countries.\409\ Requests for transit are to
contain a description of the person whose transit is proposed
and a brief statement of the facts of the case with respect to
which he is being surrendered to the Requesting State. The
paragraph permits the request to be transmitted either through
the diplomatic channel, or directly between the United States
Department of Justice and the Attorney General in Saint Lucia,
or via INTERPOL channels. The negotiators agreed that the
diplomatic channels will be employed as much as possible for
requests of this nature. A person may be detained in custody
during the period of transit.
Paragraph 2 provides that no advance authorization is
needed if the person in custody is in transit to one of the
Parties and is traveling by aircraft and no landing is
scheduled in the territory of the other Party. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant such a
request. It also permits the transit State to detain a fugitive
until a request for transit is received and executed, so long
as the request is received within 96 hours of the unscheduled
landing.
Saint Lucia does not appear to have specific legislation on
this matter, and the Saint Lucia delegation stated that its
Government would seek implementing legislation for this article
in due course.
Article 17--Representation and Expenses
The first paragraph of this article provides that the
United States will represent Saint Lucia in connection with a
request from Saint Lucia for extradition before the courts in
this country, and the Saint Lucia Attorney General will arrange
for the representation of the United States in connection with
United States extradition requests to Saint Lucia.
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and the translation of documents, which expenses are to be paid
by the Requesting State. The negotiators agreed that in some
cases the Requested State might wish to retain private counsel
to assist it in the presentation of the extradition request.
The Attorney General of Saint Lucia has a very small staff, and
might need to enlist outside counsel to aid in handling a
complex, contested international extradition proceeding. It is
anticipated that in such cases the fees of private counsel
retained by the Requested State would be paid by the Requested
State. The negotiators also recognized that cases might arise
in which the Requesting State would wish to retain its own
private counsel to advise it on extradition matters or even
assist in presenting the case, if the Requested State agrees.
In such cases the fees of private counsel retained by the
Requesting State must be paid by the Requesting State.
Paragraph 3 provides that neither State shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, or surrender of the fugitive. This includes any
claim by the fugitive for damages, reimbursement, or legal
fees, or other expenses occasioned by the execution of the
extradition request.
Article 18--Consultation
Article 18 of the treaty provides that the United States
Department of Justice and the Attorney General's Chambers in
Saint Lucia may consult with each other with regard to an
individual extradition case or on extradition procedures in
general. A similar provision is found in other recent U.S.
extradition treaties.\410\
The article also states that consultations shall include
issues involving training and technical assistance. At the
request of Saint Lucia, the United States delegation promised
to recommend training and technical assistance to better
educate and equip prosecutors and legal officials in St. Lucia
to implement this treaty.
During the negotiations, the Saint Lucia delegation
expressed concern that the United States might invoke the
Treaty much more often than St. Lucia, resulting in an
imbalance in the financial obligations occasioned by
extradition proceedings. While no specific Treaty language was
adopted, the United States agreed that consultations between
the Parties under Article 18 could address extraordinary
expenses arising from the execution of individual extradition
requests or requests in general.
Article 19--Application
This Treaty, like most other United States extradition
treaties negotiated in the past two decades, is expressly made
retroactive, and accordingly covers offenses that occurred
before the Treaty entered into force, provided that they were
offenses under the laws of both States at the time that they
were committed.
Article 20--Ratification and Entry Into Force
This article contains standard treaty language providing
for the exchange of instruments of ratification at Washington
D.C. The Treaty is to enter into force immediately upon the
exchange.
Paragraph 3 provides that the 1972 Treaty will cease to
have any effect upon the entry into force of the Treaty, but
extradition requests pending when the Treaty enters into force
will nevertheless be processed to conclusion under the 1972
Treaty. Nonetheless, Article 15 (waiver of extradition) of this
Treaty will apply in such proceedings, and Article 14 (rule of
speciality) also applies to persons found extraditable under
the prior Treaty.
Article 21--Termination
This Article contains standard treaty language describing
the procedure for termination of the Treaty by either State.
Termination shall become effective six months after notice of
termination is received.
Technical Analysis of The Extradition Treaty Between The United States
of America and the Grand Duchy of Luxembourg signed October 1, 1996
On October 1, 1996, the United States signed a treaty on
extradition with the Grand Duchy of Luxembourg (hereinafter
``the Treaty''). In recent years, the United States has signed
similar treaties with many other countries as part of a highly
successful effort to modernize our law enforcement relations.
The new extradition treaty will replace the treaty now in
force,\411\ and it constitutes an important step forward in the
United States' efforts to win the cooperation of foreign
nations in combating crime.
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. Luxembourg has its own
extradition legislation that will apply to U.S. requests under
the Treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
This article, like the first article in every recent United
States extradition treaty, formally obligates each Contracting
State to extradite to the other Contracting State persons
charged with, found guilty of, or convicted of an extraditable
offense, subject to the provisions of the Treaty.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what constitutes an extraditable offense. The Treaty, like most
recent United States extradition treaties, including those with
Costa Rica, Ireland, Italy, Jamaica, Jordan, Sweden
(Supplementary Convention) and Thailand, does not list the
offenses for which extradition may be granted.
Paragraph 1 permits extradition for an offense punishable
under the laws of both Contracting States 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. As Luxembourg law provides for maximum and minimum
sentences, the term ``maximum'' was included to make clear that
the Requested State is to look only to the upper limit of the
potential penalty when determining whether an offense meets
that requirement of being punishable by more than one year. By
defining extraditable offenses in terms of ``dual criminality''
and the requirement of being a felony rather than listing each
extraditable crime, the Treaty obviates the need to renegotiate
or supplement it should the Contracting States 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 nations.
Paragraph 1(a) makes clear that attempts to commit and
participation as an accomplice or accessory to the commission
of an extraditable offense are also extraditable offenses if
the dual criminality and minimum penalty provisions of
paragraph 1 are met. Paragraph 1(b) follows the practice of
recent extradition treaties in providing that offenses under
paragraph 1 include conspiring to commit an offense, or in the
case of Luxembourg, being a member of an association of
wrongdoers, the equivalent in Luxembourg of a U.S. conspiracy
offense.
Paragraph 2 provides that a person who has already been
sentenced in the Requesting State may be extradited only if
more than six months of his or her sentence remains to be
served. Most U.S. extradition treaties signed in recent years
do not contain such a requirement, but provisions of this kind
do appear in some recent United States extradition
treaties.\412\
Paragraph 3 reflects the intention of the Contracting
States to interpret the principles of this article broadly.
Judges in foreign countries often are 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
requirements in their own criminal law, they occasionally have
denied the extradition of fugitives sought by the United States
on this basis. This paragraph requires that such elements be
disregarded in applying the dual criminality principle. For
example, it will ensure that Luxembourg authorities treat
United States mail fraud charges in the same manner as fraud
charges under state laws, and view the federal crime of
interstate transportation of stolen property in the same manner
as unlawful possession of stolen property. This paragraph also
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 the
terminology used to describe the offense in the laws of each
country. A similar provision is included in all recent United
States extradition treaties.
Paragraph 4 states that an offense will be extraditable
regardless of where the act constituting the offense was
committed. This provision deals with the fact that federal
crimes may involve acts committed wholly outside United States
territory. American jurisprudence recognizes the jurisdiction
of United States courts to hear criminal cases involving
offenses committed outside the United States if the crime was
intended to, or did, have effects in the United States, or if
the legislative history of the statute shows clear
congressional intent to assert such jurisdiction.\413\ The
Contracting States agreed that this provision does not mean
that the Requested State loses jurisdiction to prosecute an
offense committed within its territory if the Requesting State
transmits a request prior to the Requested State's prosecution.
The Requested State could postpone extradition under provisions
relating to temporary and deferred surrender, and if
prosecution in the Requested State occurs, extradition shall
occur consistent with other provisions of the Treaty.
Paragraph 5 provides that if a request includes, in
addition to an offense extraditable under the Treaty, an
offense that would be extraditable but for the condition
regarding the amount of punishment that may be imposed, the
Requested State shall grant extradition for the latter offense.
The wording of the article is based on Article 3(2) of the
Council of Europe Convention on Extradition, and the
contracting parties agreed that it meant that once extradition
is granted for an extraditable offense, it shall also be
granted for any other offense set forth even if the latter
offense is punishable by deprivation of liberty for a period
shorter than that set forth in the Treaty, as long as all other
requirements for extradition are met. Thus, if Luxembourg
agrees to extradite to the United States a fugitive wanted for
prosecution on an offense punishable by more than a year, the
United States may also obtain extradition for misdemeanor
offenses, specifically offenses punishable by a year or less,
as long as those offenses are also recognized as criminal
offenses in Luxembourg. Thus, the Treaty incorporates recent
United States extradition practice by permitting extradition
for misdemeanors committed by a fugitive when 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 it permits all charges to be
disposed of more quickly, thereby facilitating trials while
evidence is fresh and permitting the possibility of concurrent
sentences. Provisions addressing this issue are also found in
recent United States extradition treaties with Australia, Costa
Rica, Ireland and Italy.
Paragraph 6 permits the Requested State to deny extradition
if prosecution of the offense or execution of the penalty would
be barred by the Requested State's statute of limitations.
Other treaties have similar provisions which permit or require
denial of a request if the statute of limitations would have
run in the Requested State had the offense been committed in
that state.\414\ The practical effect of the provision is to
permit the Requested State to oblige the Requesting State to
comply with the prescriptive laws of the Requested State. Even
if the statute of limitations has expired in the Requested
State, the denial of extradition is not automatic. In the
United States, the decision whether to grant or deny
extradition would be made by the Secretary of State. In
Luxembourg, a court has the power to recommend a grant or
denial of extradition to the government, with all relevant
factors considered in the decision-making process. The
negotiators agreed that one important consideration is whether
there has been any tolling, interruption or suspension of the
statute of limitations in the Requesting State. The last
sentence of paragraph 6 requires the parties, insofar as
possible, to take into consideration whether the statute has
been tolled in the Requesting State.
Article 3--Nationality
Article 3 provides that neither State shall be required to
extradite its own nationals, but the Executive Authority of the
United States may do so at its discretion. The United States
does not deny extradition on the basis of the offender's
citizenship,\415\ and our long-standing policy is to draw no
distinction between citizens and others for extradition
purposes. Luxembourg, like a number of other European
jurisdictions, indicated that it could not agree to extradition
of a national under any circumstances.
Paragraph 2 provides that if the Requested State refuses
extradition solely on the basis of the nationality of the
offender, that State must submit the case to its authorities
for prosecution if asked by the Requesting State. Similar
provisions are found in many United States extradition
treaties.\416\
Article 4--Political and Military Offenses
Paragraph 1 prohibits extradition for political offenses.
This is a standard provision in recent United States
extradition treaties.
Paragraph 2 describes seven categories of offenses that,
for the purposes of the Treaty, shall not be considered to be
political offenses.
First, the political offense exception does not apply to a
murder or willful crime against the person of a Head of State
of the Contracting States or a member of the Head of State's
family.
Second, the political offense exception does not apply to
an offense for which both Contracting States are obligated
pursuant to a multilateral international agreement either to
extradite the person sought or to submit the case to their
competent authorities for decision regarding prosecution, such
as the United Nations Convention Against the Illicit Traffic in
Narcotic Drugs and Psychotropic Substances.\417\
Third, as set forth in Article 4(2)(c), the parties agreed
that the political offense exception does not apply to murder,
manslaughter, malicious wounding or inflicting grievous bodily
harm.
Fourth, as set forth in Article 4(2)(d), the parties agreed
that the political offense exception does not apply to offenses
involving kidnapping, abduction, or unlawful detention,
including hostage taking.
Fifth, as set forth in Article 4(2)(e), the parties agreed
that the political offense exception does not apply to the
placement or use of an explosive, incendiary or destructive
device or substance capable of endangering life or doing
grievous bodily harm. Articles 4(2)(c), (d) and (e) narrow the
scope of the political offense exception to exclude terrorist-
type offenses and ensure that extradition will be mandatory
under the Treaty for such offenses.
The sixth and seventh exceptions set forth in Articles
4(2)(f) and (g) ensure that attempts to commit, participation
in the commission of, an ``association of wrongdoers'' under
Luxembourg law and a conspiracy under U.S. law are not
considered political offenses under the Treaty when they relate
to an offense covered by Articles 4(2)(a)-(e).
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State determines
that the request was politically motivated.\418\ The
negotiators agreed that under paragraph 3 the executive
authority may refuse extradition when a request is not made in
good faith or when, in the executive's judgment, the fugitive
will not be able to obtain a fair trial in the Requesting
State. Under United States law and practice, the Secretary of
State has the sole discretion to determine whether an
extradition request is based on improper political
motivation.\419\
Paragraph 4 states that the executive authority of the
Requested State shall refuse extradition for offenses under
military law that are not punishable under ordinary criminal
law.\420\
Article 5--Fiscal Offenses
Some United States extradition treaties contain provisions
permitting extradition for fiscal offenses. Article 5 balances
the interests of the united States in prosecuting major
offenders for all offenses, including tax offenses, and the
interests of Luxembourg, which has generally refused to assist
other nations enforce their tax laws. This article allows
extradition if a fugitive has engaged in other serious criminal
activity, for instance drug trafficking or organized criminal
activity, even if the admissible evidence of the other activity
is insufficient to assure a conviction.
Paragraph 1 provides that the executive authority of the
Requested State shall have discretion to deny extradition when
the offense for which extradition is requested is a fiscal
offense.
Paragraphs 2(a) and (b) define fiscal offenses for purposes
of the Treaty as offenses relating to the reporting and payment
of taxes or customs duties and offenses relating to currency
exchange laws.
Paragraph 3 provides that an offense that would otherwise
be a fiscal offense under Article 5(2) may nonetheless be
considered not to be a fiscal offense if it relates to drug
trafficking, a crime of violence, or other criminal acts of a
particularly serious nature. The parties agreed that the drug
trafficking offense, crime of violence, or other crime must be
particularly serious to fall within this paragraph. It was also
agreed that the offense may nonetheless be considered not to be
a fiscal offense even though extradition is not sought for the
other criminal activity, e.g., for drug trafficking or violent
criminal activity.
Article 6--Prior Prosecution
This article, while prohibiting extradition if a person has
been prosecuted in the Requested State for the same offense,
permits extradition when the person sought is charged by each
Contracting State with different offenses arising out of the
same basic transaction.
Paragraph 1, which prohibits extradition if the person
sought has been convicted or acquitted in the Requested State
for the offense for which extradition is requested, is similar
to language present in many United States extradition treaties.
This provision applies only when the person sought has been
convicted or acquitted in the Requested State of exactly the
same crime that is charged in the Requesting State. It is not
enough that the same facts were involved. Thus, if the person
sought is accused by one Contracting State of illegally
smuggling narcotics into that country and is charged by the
other Contracting State with unlawfully exporting the same
shipment of drugs, an acquittal or conviction in one
Contracting State does not insulate that person from
extradition because different crimes are involved. The
negotiators agreed that extradition is not to be denied on the
basis that a fugitive has been prosecuted in a third state for
the same offense.
Paragraph 2 makes it clear that neither Contracting State
may refuse to extradite a person sought on the basis that the
Requested State's authorities declined to prosecute the person
or instituted and later discontinued proceedings against the
person. This provision was included because a decision of the
Requested State to forego prosecution or to drop charges
previously filed could be the result of a failure to obtain
sufficient evidence or witnesses for trial, whereas the
Requesting State's prosecution might not suffer from the same
impediments. This provision should enhance the ability of the
Contracting States to extradite to the jurisdiction with the
better chance of a successful prosecution.
Article 7--Capital Punishment and Humanitarian Concerns
Paragraph 1 requires the Requested State to refuse
extradition when the offense for which extradition is sought is
punishable by death in the Requesting State, but not in the
Requested State, unless the Requesting State provides
sufficient assurances that the death penalty will not be
imposed or, if imposed, will not be carried out. Similar
provisions are found in many recent United States extradition
treaties.\421\
The Luxembourg delegation insisted on this provision,
noting that Luxembourg would not accept a treaty that suggested
it had discretion to allow a person to be extradited who might
receive a death penalty.
Paragraph 2 permits the executive authority of the
Requested State to refuse extradition on humanitarian grounds.
Under current Luxembourg law, the only humanitarian factors to
be taken into consideration are youth, old age or health.
Luxembourg insisted on having a provision similar to those
included in other Benelux treaties, specifically, treaties
signed with Belgium and the Netherlands\422\. Similar
provisions are found in many extradition treaties.\423\ When a
case presents compelling humanitarian concerns, the Requested
State is to contact the Requesting State to determine whether
there is a method for handling the case that will alleviate the
humanitarian concerns. If so, assurances may be provided and
the extradition may proceed.
Article 8--Extradition Procedures and Required Documents
This article sets forth the documentary and evidentiary
requirements for an extradition request. Similar articles are
found in most recent United States extradition treaties.
Paragraph 1 requires that each formal request for
extradition be made through the diplomatic channel. A formal
extradition request may be preceded by a request for the
provisional arrest of the person sought pursuant to Article 12.
Provisional arrest requests need not be made through the
diplomatic channel provided that the requirements of Article 12
are met.
Paragraph 2 specifies the information that must accompany
each request for extradition under the Treaty. 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 text of the
law describing the essential elements of the offense for which
extradition is requested,'' which enables the Requested State
to determine easily whether a lack of dual criminality is an
appropriate basis for denying extradition. Paragraph 2(e)
facilitates the determination regarding the statute of
limitations under Article 1(6) by requiring information both on
the time limit for prosecution and on interruption or
suspension of the time limit.
Paragraph 3 lists the additional information required when
the person is sought for trial in the Requesting State.
Paragraph 3 (c) requires that if the person sought has not been
convicted of the crime for which extradition is requested, the
Requesting State must provide, in addition to a copy of the
arrest warrant and charging document, ``such information as
would justify the committal for trial of the person if the
offense had been committed in the Requested State.'' In
Luxembourg, as in many European nations, the law permits
extradition without review of any evidence, provided the arrest
warrant and formal documents are presented. Under U.S. law,
there must be an examination of the facts to establish probable
cause to believe that an offense was committed and that the
fugitive committed it.\424\ This provision requires that the
Requesting State submit such information as meets the
requirements of the Requested State.
Paragraph 4 lists the information needed, in addition to
the requirements of paragraph 2, when the person sought has
already been found guilty of an offense in the Requesting
State. It clarifies 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.\425\ Paragraph 4(d) requires that if a person has
been convicted but not yet sentenced, the Requesting State must
provide a copy of the warrant for the arrest of the person
sought and affirm an intention to impose a sentence.
Paragraph 4(e) provides that if a person sought was found
guilty in absentia, the documentation required includes both
proof of conviction and the same documentation as in cases in
which no conviction has been obtained. This provision is
consistent with the long-standing United States policy of
requiring such documentation in the extradition of persons
convicted in absentia. Convictions in absentia are extremely
rare under Luxembourg law.
Article 9--Supplementary Information
This article states that if the Requested State considers
the information furnished in support of the request for
extradition insufficient under its law with respect to
extradition, it may ask that the Requesting State submit
supplementary information and fix a time limit for receipt of
this information. This article is intended to permit the
Requesting State to cure defects in the request and
accompanying materials that are found by a court in the
Requesting State or by the attorney acting on behalf of the
Requesting State, and to permit the court, in appropriate
cases, to grant a reasonable continuance to obtain, translate,
and transmit additional materials. A similar provision is found
in other United States extradition treaties.\426\
Paragraph 2 indicates that if the person whose extradition
is requested is under arrest and the supplementary information
requested is not sufficient or does not arrive within the time
specified, the person may be released from custody, but the
Requesting State may, nonetheless, make a new request for
extradition.
Paragraph 3 requires that when a person so held is
released, the Requested State shall notify the Requesting State
as soon as practicable.
Article 10--Admissibility of Documents
Article 10 pertains to the authentication procedures for
the documents provided by the Requesting State so that the
documents are received and admitted in the Requested State's
extradition proceeding.
The article states that when the United States is the
Requesting State, the documents in support of extradition must
be admitted into evidence if they are authenticated by the U.S.
Department of State. When Luxembourg is the Requesting State,
the documents are to be admitted into evidence in the U.S.
extradition proceeding if they have been certified by the
principal diplomatic or consular officer of the United States
resident in Luxembourg, as is provided under United States
extradition law.\427\
Paragraph (c) provides that documents shall also be
admitted into evidence if authenticated in any other manner
accepted by the law of the Requested State. For example, there
may be information in the Requested State itself which is
relevant and probative to extradition, and the Requested State
itself is free under (c) to utilize that information if the
information satisfies the ordinary rules of evidence in that
state. This ensures that evidence that is acceptable under the
evidentiary rules of the Requested State may be used in
extradition proceedings even if it is not otherwise
authenticated pursuant to the Treaty. This paragraph also
should ensure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing simply because of an
inadvertent error or omission in the authentication process.
Article 11--Translation
This article requires that all documents submitted by
Luxembourg be translated into English and that all documents
submitted by the United States be translated into French.
Article 12--Provisional Arrest
This article describes the process by which a person sought
in one Contracting State may be arrested and detained in the
other while the formal extradition documentation is prepared by
the Requesting State.
Paragraph 1 provides that a request for provisional arrest
may be made through the diplomatic channel or directly between
the United States Department of Justice and the Ministry of
Justice of Luxembourg. The provision also specifies that
INTERPOL may be used to transmit such a request.
Paragraph 2 sets forth the information that the Requesting
State must provide in support of such a request.
Paragraph 3 requires that the Requested State notify the
Requesting State without delay of the disposition of its
application for provisional arrest and the reasons for any
denial.
Paragraph 4 provides that the person who is provisionally
arrested may be released from detention if the Requesting State
does not submit a fully documented request for extradition to
the executive authority of the Requested State within 60 days
of the provisional arrest. When the United States is the
Requested State, it is sufficient for purposes of this
paragraph if the documents are received by the Secretary of
State or the U.S. Embassy in Luxembourg.\428\
Although the person sought may be released from custody if
the documents are not received within the 60-day period or any
extension thereof, the extradition proceedings against the
fugitive need not be dismissed. The final paragraph in this
article makes it clear that the person may be taken into
custody again, and the extradition proceedings may commence, if
the formal request and supporting documents are presented
subsequently.
Article 13--Decision and Surrender
This article provides that the Requested State promptly
notify the Requesting State of its decision on the request for
extradition. The delegations agreed the notification could be
through informal channels, such as the respective Justice
Ministries, and that formal notice in the form of a diplomatic
note should follow. If the request is denied in whole or in
part, the Requested State must explain the reasons for the
denial. If extradition is granted, this article requires
authorities of the Contracting States to agree on a time and
place for the surrender of the person sought. The Requesting
State must remove the person within such time as may be
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. United States law requires that surrender occur within
two calendar months of a finding that the person is
extraditable,\429\ or of the conclusion of any litigation
challenging that finding,\430\ whichever is later. The law in
Luxembourg does not specify a time by which a person must be
removed.
In addition, paragraph 5 requires that the period of time
spent in custody in the Requested State pursuant to the
Requesting State's extradition request be subtracted from the
period of detention to be served in the Requesting State.
Providing credit for time in detention awaiting extradition is
in accordance with current U.S. policy and practice.
Article 14--Temporary and Deferred Surrender
Occasionally, a person sought for extradition may already
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 and
the full execution of any punishment imposed.
Paragraph 1 provides for the temporary surrender of a
person sought for prosecution in the Requesting State who is
being proceeded against or serving a sentence in the Requested
State. A person thus surrendered shall be returned to the
Requested State at the conclusion of the proceedings in the
Requesting State. The time spent in detention in the territory
of the Requesting State is to be deducted from the time
remaining to be served in the Requested 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 probability
of a successful prosecution. Such transfer may also be
advantageous to the person sought in that it: (1) permits
resolution of the charges sooner; (2) may make it possible for
any sentence to be served in the Requesting State concurrently
with the sentence in the Requested State; and (3) permits a
defense against the charges while favorable evidence is fresh
and more likely to be available. Such provisions are found in
many recent extradition treaties.
Paragraph 2 provides that the executive authority of the
Requested State may postpone the initiation of extradition
proceedings against a person who is serving a sentence in the
Requested State until the full execution of any punishment that
has been imposed.\431\ The wording of the provision also allows
the Requested State to postpone the surrender of a person
facing prosecution or serving a sentence even if all necessary
extradition proceedings have been completed.
Article 15--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties in listing some of the factors that
the executive authority of the Requested State must consider
when reviewing requests from two or more countries for the
extradition of the same person. For the United States, the
Secretary of State decides to which country the person should
be surrendered.\432\
Article 16--Seizure and Surrender of Property
This article permits the seizure by the Requested State of
all items including articles, documents and other evidence
connected with the offense for which extradition is requested
to the extent permitted by the Requested State's internal law.
The article also provides that these items may be surrendered
to the Requesting State upon the granting of the extradition or
even if extradition cannot be effected due to the death,
disappearance or escape of the person sought.
Paragraph 2 states that the Requested State may condition
its surrender of items upon satisfactory assurances that the
items will be returned to the Requested State as soon as
practicable. Paragraph 2 also permits the surrender of items to
be deferred if they are needed as evidence in the Requested
State.
In Paragraph 3, surrender of items under this provision is
expressly made subject to due respect for the rights of third
parties in such property.
Article 17--Rule of Speciality
This article deals with the principle known as the rule of
speciality, a standard aspect of United States extradition
practice. Designed to ensure that a fugitive surrendered for
one offense is not tried for other crimes, the rule of
speciality prevents a request for extradition from being used
as a subterfuge to obtain custody of a person for trial or
execution of a sentence on different charges that are not
extraditable or properly documented in the request.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, tried, or punished in the Requesting State for:
(1) the offense for which extradition was granted or a
differently denominated offense based on the same facts,
provided the offense is extraditable or is a lesser included
offense; (2) an offense committed after the extradition; or (3)
an offense for which the executive authority of the Requested
State consents.\433\ The Contracting Parties agreed that the
lesser included offense need not be a felony.
Paragraph 1(c) permits the Requested State to require the
Requesting State seeking consent to prosecute for new charges
to submit documents identified in Article 8 and a statement of
the position of the person whose extradition is sought. The
contracting parties agreed that a statement from the attorney
representing the fugitive would be sufficient and that the
Requesting State may, in appropriate circumstances, submit a
statement that the fugitive declined to make a statement.
Paragraph 1(c) permits the Requesting State to detain the
person extradited for 75 days or for such longer period as the
Requested State may authorize while the Requested State makes
its determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third state without the consent of
the Requested State.
Paragraph 3 removes the restrictions of paragraphs 1 and 2
on detention, trial, or punishment of an extradited person for
additional offenses or extradition to a third state if: (1) the
extradited person leaves the Requesting State after extradition
and voluntarily returns to it; or (2) the extradited person
does not leave the Requesting State within 15 days of being
free to do so.
Article 18--Simplified Extradition
Persons sought for extradition often elect to waive their
right to extradition proceedings in order to expedite their
return to the Requesting State. This article provides that when
a fugitive waives extradition in accordance with the laws of
the Requested State, the person may be returned to the
Requesting State as expeditiously as possible without further
proceedings.
United States practice dictates that when a fugitive waives
extradition and voluntarily returns to the Requesting State,
the rule of speciality does not apply. However, under
Luxembourg law, the rule of speciality does apply in such
cases. The United States agreed to recognize such application
upon the receipt of an accompanying diplomatic note indicating
that the rule of specialty is applicable to the extradition.
Article 19--Transit
Paragraph 1 gives each Contracting State the power to
authorize transit through its territory of a person being
surrendered to the other Contracting State by a third state. A
person in transit may be detained in custody during the transit
period. Requests for transit are to contain a description of
the person being transported and a brief statement of the facts
of the case for which the person is sought. Requests for
transit may be made through the diplomatic channel, directly
between the United States Department of Justice and the
Ministry of Justice of Luxembourg, or through the facilities of
INTERPOL. Requests for transit may be denied for a national of
the Requested State or for a person sought for prosecution or
to serve a sentence in the Requested State.
Paragraph 2 describes the procedure each Contracting State
should follow when seeking to transport a person in custody
through the territory of the other. Under this provision, no
advance authorization is needed if the person in custody is in
transit to one of the Contracting States and is traveling by
aircraft and no landing is scheduled in the territory of the
other. Should an unscheduled landing occur, a request for
transit may be required at that time, and the Requested State
may grant such a request. It also provides for the transit
State to detain a fugitive until a request for transit is
received and executed, so long as the request is received
within 96 hours of the unscheduled landing.
Article 20--Representation and Expenses
Paragraph 1 provides that the Requested State shall, by all
legal means within its power, advise, assist, appear in court
for and represent the interests of the Requesting State in
extradition request proceedings. Thus, the United States will
provide complete representation for Luxembourg. As Luxembourg
law prohibits either a government attorney or private counsel
from representing the United States before its courts in an
extradition proceeding, Luxembourg is not able to represent the
United States in a reciprocal fashion. Luxembourg also
indicated that communications between the Public Prosecutor and
representatives of the United States regarding a request for
extradition may be improper. The Luxembourg Ministry of Justice
will review requests for extradition and communicate with
United States authorities.
Paragraph 2 states that the Requesting State shall bear the
expenses of translation and transportation of the person
sought, and that the Requested State shall pay all other
expenses.
Paragraph 3 provides that neither Contracting State shall
make a pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination and surrender of the person sought. This includes
any claim by the person sought for damages, reimbursement of
legal fees, or other expenses occasioned by the execution of
the extradition request.
Article 21--Consultation
This article provides that the United States Department of
Justice and the Ministry of Justice of Luxembourg may consult
with each other, directly or through INTERPOL, regarding an
individual extradition case or extradition procedures in
general. A similar provision is found in other recent United
States extradition treaties.\434\
Article 22--Application
This Treaty, like most United States extradition treaties
negotiated in the last two decades, is expressly made
retroactive to cover offenses that occurred before as well as
after the Treaty enters into force. The negotiators agreed that
for this provision to apply, the conduct had to have been
criminal in both the Requesting and Requested States at the
time it occurred.
Article 23--Ratification and Entry into Force
The first two paragraphs of this article contain standard
treaty language providing for the exchange of instruments of
ratification and specifies the day on which the Treaty will
enter into force after the exchange.
Paragraph 3 provides that the 1883 Treaty and the
Supplementary Convention of 1935 will cease to have any effect
upon the entry into force of the Treaty, but extradition
requests pending when the Treaty enters into force will
nevertheless be processed to conclusion under the 1883 Treaty
and the 1935 Supplementary Convention. Nonetheless, Article 2
of this Treaty becomes applicable. This assures that such a
case may proceed if the dual criminality requirements of this
Treaty are met. In addition, Article 14 of this Treaty, which
addresses temporary and deferred surrender, and Article 17,
which concerns the rule of speciality, will apply in such
extradition proceedings. This means that if a person found
extraditable under the 1883 Treaty and Supplementary Convention
of 1935 is serving a sentence in the Requested State when this
Treaty enters into force, the Requested State has discretion to
grant temporary surrender. The Requested State may also waive
the application of the rule of speciality if it is persuaded
that it is in the interests of justice to do so.
Article 24--Termination
This article contains standard treaty language describing
the procedure for termination of the Treaty by either
Contracting State. Termination becomes effective six months
after the date of such notice.
Technical Analysis of The Protocol to the Extradition Treaty Between
the United States of America and the United Mexican States of May 4,
1978 Signed September 2, 1998
The Protocol to the Extradition Treaty between the United
States of America and the United Mexican States of May 4, 1978
(``the Protocol'') was signed in Washington, D.C., on November
13, 1997. The Protocol authorizes the temporary extradition to
the Requesting Party of individuals charged with crimes there
who are serving penal sentences in the Requested Party. Absent
the authorization provided by the Protocol, surrender through
the extradition process of persons already convicted and
sentenced in the country from which extradition is sought must
generally be deferred until the completion of their sentences,
by which time the evidence in the other country may no longer
be compelling or available. Pursuant to the Protocol, such
individuals, after the Requested Party has granted a request
for their extradition, can be temporarily surrendered to the
Requesting Party for purposes of immediate prosecution and then
returned to the Requested Party for the completion of their
original sentences.
The Protocol serves as a supplement to, and is incorporated
as a part of, the existing Extradition Treaty between the
United States of America and the United Mexican States, which
was signed at Mexico on May 4, 1978, and entered into force on
January 25, 1980 (``the Treaty'').\435\ The mechanism
established by the Protocol is a standard feature in treaties
concluded between the United States and other countries in
recent years.\436\ The addition of this mechanism to the U.S.-
Mexico Treaty serves to improve the bilateral extradition
process in light of modern treaty practice and modern patterns
of chronic criminal behavior. It is in accordance with
Declaration of the Mexican-U.S. Alliance Against Drugs, signed
at Mexico City on May 6, 1997, in which Presidents Clinton and
Zedillo stated their intention to ``ensure that fugitives are
expeditiously and with due legal process brought to justice and
are unable to evade justice in one of our countries by fleeing
to or remaining in the other.''
The following technical analysis of the Protocol was
prepared by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1
Article 1, paragraph 1, of the Protocol changes the title
of Article 15 of the Treaty from ``Delayed Surrender'' to
``Delayed and Temporary Surrender.''
Paragraph 2 of Article 1 describes the new mechanism of
temporary extradition for individuals serving sentences in the
Requested Party. It adds two new paragraphs to Article 15 of
the Treaty. The first new provision, new Article 15(2), sets
forth the substantive authorization for the Requested Party to
allow the temporary surrender to the Requesting Party of
individuals who have been found extraditable, but have already
been convicted and sentenced in the Requested Party. Prior to
this amendment, Article 15 of the Treaty provided only that the
surrender of such individuals (or of persons against whom
charges had been initiated) could be deferred until the
punishment imposed against them had been fully executed. To
prevent the injustice potentially created by prolonged delays
prior to surrender, the expedited transfer procedure of the new
Article 15(2) provides another option to assist both
governments in the effective pursuit and prosecution of
criminal fugitives.
The mechanism of temporary surrender applies only to those
who have been sentenced in the Requested Party. It does not
encompass persons who are simply facing charges in the
Requested Party or against whom proceedings have been
initiated, but not completed, because Mexican law does not
permit the absence of defendants or the transfer of
jurisdiction over them prior to sentencing. Similarly, as in
analogous provisions of other extradition treaties to which the
United States is a party, the Protocol does not apply to those
being sought by the Requesting Party for service of a
previously-imposed sentence, because the rationale for the
mechanism--the prosecution of the extraditee while the case is
still viable--is not implicated for those individuals who have
already been convicted.
New Article 15(2) further states that the surrendered
person ``shall be kept in custody in the Requesting State, and
shall be returned to the Requested State after conclusion of
the proceedings, in accordance with conditions to be determined
by agreement of the Parties.'' It is anticipated that
extradition authorities in Mexico and the United States will
consult to develop case-specific agreements between the two
governments, which will be transmitted through diplomatic
channels and based on formal, written commitments by the
pertinent federal and/or state officials with jurisdiction and
the authority to make such commitments. The agreements will
typically address arrangements for the transfer and maintenance
of custody of the prisoners and their return to the Requested
Party, as well as any extraordinary matters that may be
relevant, such as the proper handling of individuals requiring
medical treatment or the appropriate disposition of a prisoner
who commits new crimes in the Requesting Party during the
period of temporary surrender.
The negotiators agreed that the new temporary surrender
mechanism established by the Protocol will be reserved for
exceptional situations, in which the interests of justice
cannot or may not otherwise be served. To further that
understanding, the negotiators further agreed that each request
for temporary surrender should be justified by evidence of the
dangerousness of the requested person and the seriousness of
the offense charged in the Requesting Party (as generally
provided in the Requesting Party's extradition request), as
well as an explanation of the loss of evidence or witness
testimony likely or certainly to result from deferred
extradition.
The second provision added to Article 15 of the Treaty, new
Article 15(3), states that a temporarily surrendered person who
is acquitted in the Requesting Party shall receive credit in
the Requested Party for the time spent in custody in the
Requesting Party. This provision is included to ensure that,
regardless of the laws or regulations generally applicable to
persons in custody elsewhere, no individual will lose custodial
credit for time spent in such status in a jurisdiction in which
a conviction is not obtained.
Article 2
Paragraph 1 of Article 2, provides that the provisions of
the Protocol are to be viewed as integral parts of the Treaty,
and their interpretation governed by principles therein.
Paragraph 2 of the Article, which states that the
requirements of the prisoner transfer treaty between Mexico and
the United States\437\ do not apply to temporary surrenders
under the Protocol, was included to make it clear that the
consent of the individual being temporarily surrendered is not
required. Under the Protocol, the person being surrendered will
already have been found extraditable, a process not involving
consent, and will be transferred to face prosecution. The
prisoner transfer treaty, on the other hand, requires the
consent of the prisoner and results in the service of a
sentence in the receiving country.
Paragraph 3 contains standard treaty language providing
that the Protocol shall be subject to ratification and that it
will enter in force on the date of exchange of instruments of
ratification between the Parties. It will terminate upon
termination of the Treaty as provided in Article 23 of that
instrument.
Technical Analysis of The Extradition Treaty Between The United States
of America and the Republic of Poland signed July 10, 1996
On July 10, 1996, the United States signed a treaty on
extradition with the Republic of Poland (hereinafter ``the
Treaty''). In recent years, the United States has signed
similar treaties with many other countries as part of a highly
successful effort to modernize our law enforcement relations.
The new extradition treaty will replace the treaty now in
force,\438\ and constitutes an important step forward in the
United States' efforts to win the cooperation of foreign
nations in combating crime.
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 Republic of Poland
has its own internal legislation\439\ that will apply to the
United States' requests under the Treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
This article, as with the first article in every recent
United States extradition treaty, formally obligates each
Contracting State to extradite to the other Contracting State
persons charged with, found guilty of, or convicted of an
extraditable offense, subject to the provisions of the Treaty.
The article refers to prosecution ``in'' the Requesting State
rather than ``of'' the Requesting State, since the obligation
to extradite, in cases arising from the United States, would
include state and local prosecutions as well as federal cases.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what constitutes an extraditable offense. The Treaty, similar
to recent United States extradition treaties with Costa Rica,
Ireland, Italy, Jamaica, Jordan, Sweden (Supplementary
Convention), and Thailand, does not list the offenses for which
extradition may be granted.
Paragraph 1 permits extradition for an offense punishable
under the laws of both Contracting States 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. As Polish law provides for maximum and minimum
sentences, the term ``maximum'' was included to make clear that
the Requested State is to look only to the upper limit of the
potential penalty when determining whether an offense meets
that requirement of being punishable by more than one year. By
defining extraditable offenses in terms of ``dual criminality''
and the requirement of being a felony rather than listing each
extraditable crime, the Treaty obviates the need to renegotiate
or supplement it should the Contracting States 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 nations.
During the negotiations, the Polish delegation stated that
key offenses such as drug trafficking, including operating a
continuing criminal enterprise\440\, money laundering\441\ and
offenses under the RICO statutes\442\, are considered
extraditable under the Treaty.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting to commit, conspiring to commit, or otherwise
participating in, an extraditable offense. 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. Poland has no general conspiracy statue
like Title 18, United States Code, Section 371. Therefore,
paragraph 2 creates an exception to the ``dual criminality''
rule of paragraph 1 by expressly making conspiracy an
extraditable crime. Similarly, this paragraph makes the Polish
offense of association to commit an offense an extraditable
offense.
Paragraph 3 reflects the intention of the Contracting
States to interpret the principles of this article broadly.
Judges in foreign countries often are 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 have not found
similar requirements in their own criminal law, they
occasionally have denied the extradition of fugitives sought by
the Unites States on this basis. This paragraph requires that
such elements be disregarded in applying the dual criminality
principle. For example, it will ensure that Polish authorities
treat United States mail fraud charges in the same manner as
fraud charges under state laws, and view the federal crime of
interstate transportation of stolen property in the same manner
as unlawful possession of stolen property. This paragraph also
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 the
terminology used to describe the offense under the laws of the
Contracting States. A similar provision is included in all
recent United States extradition treaties.
Paragraph 4 deals with the fact that federal crimes may
involve acts committed wholly outside United States territory.
American jurisprudence recognizes the jurisdiction of United
States courts to hear criminal cases involving offenses
committed outside the United States if the crime was intended
to, or did, have effects in the United States, or if the
legislative history of the statute shows clear congressional
intent to assert such jurisdiction.\443\ In Poland, however,
the government's ability to prosecute extraterritorial offenses
is very different.\444\ Paragraph 4, therefore, reflects
Poland's agreement to recognize United States jurisdiction to
prosecute offenses committed outside the United States if
Polish law permits it to prosecute similar offenses committed
outside Poland in corresponding circumstances. If the law of
the Requested States does not provide for such prosecution,
paragraph 4 nevertheless permits the executive authority of the
Requested State to decide, at its discretion, to grant the
extradition. For the United States, this decision is made by
the Secretary of State; for Poland the decision is made by the
Minister of Justice/Attorney General. A similar provision
appears in several recent United States treaties.\445\
The Contracting States agreed that paragraph 4 does not
mean that the Requested State loses jurisdiction to prosecute
an offense committed within its territory if the Requesting
State transmits a request prior to the Requested State's
prosecution. The Requested State could postpone extradition
under provisions relating to temporary and deferred surrender
and if prosecution in the Requested State occurs, extradition
shall occur consistent with other provisions of the Treaty.
Paragraph 5 provides that if a request includes, in
addition to an offense extraditable under the Treaty, an
offense that would be extraditable but for the condition
regarding the amount of punishment that may be imposed, the
Requested State shall grant extradition for the latter offense.
For example, if Poland agrees to extradite to the United States
a fugitive wanted for prosecution on an offense punishable by
more than a year, the United States may also obtain extradition
for misdemeanor offenses, specifically offenses punishable by a
year or less, as long as the offenses are also recognized as
criminal offenses in Poland. Thus, the Treaty incorporates
recent United States extradition practice by permitting
extradition for misdemeanors committed by a fugitive when
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 it permits
all charges to be disposed of more quickly, thereby
facilitating trials while evidence is fresh and permitting the
possibility of concurrent sentences. Provisions addressing this
issue are also found in recent United States extradition
treaties with Australia, Costa Rica, Ireland, and Italy.
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served.\446\
This Treaty, like most U.S. extradition treaties in the past
two decades, contains no such requirement. Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Fiscal Offenses
This provision provides that the executive authority of the
Requested State shall grant extradition when the offense for
which extradition is requested is an offense connected with
taxes, duties, international transfers of funds, and
importation, exportation, and transit of goods. This is true
even if the law of the Requested State does not require the
same type of fee or tax or does not regulate fees, taxes,
duties, transit of goods, and currency transactions in the same
manner as the law of the Requesting State. A similar provision
exists in other United States extradition treaties.
The Polish delegation stated that a fiscal provision was
essential to ensure that extradition would be granted for
fiscal offenses. This provision makes it clear that a Requested
State must find a fiscal offense an extraditable offense even
though the fiscal offenses are not identical under the laws of
the United States and Poland. For example, a law requiring
payment of a particular type of tax, such as an inheritance
tax, may exist in the Requesting State and not in the Requested
State; nevertheless, the Requested State would be obligated to
find the failure to pay an inheritance tax in the Requesting
State an extraditable offense.
Article 4--Nationality
Article 4 provides that neither State shall be required to
extradite its own nationals, but the Executive Authority of the
United States may do so in its discretion. The United States
does not deny extradition on the basis of the offender's
citizenship,\447\ and our long-standing policy is to draw no
distinction between citizens and others for extradition
purposes.
The U.S. and Polish delegations discussed this provision at
great length. In Poland, the extradition of nationals is barred
by statutory law only (not by the constitution), and statutory
law can be amended by treaty. Thus, this treaty would create a
possibility not currently existing for Poland to extradite one
of its nationals. The Polish delegation was unwilling to go
beyond simply making the extradition of nationals
discretionary.
According to the delegation, whether Poland will extradite
a particular national will depend on the facts of the case and
the political mood at the time a request for extradition is
made.
The delegations also discussed the issue of dual
nationality. The Polish delegation noted that one of the
driving forces for the Polish delegation's wanting to make
extradition of nationals possible was the concern that Poland
would otherwise have to provide asylum for all dual nationals
who have no connection with the country other than possessing
its citizenship.
Paragraph 2 provides that if the Requested State refuses
extradition solely on the basis of the nationality of the
offender, that State must submit the case to its authorities
for prosecution if asked by the Requesting State. Similar
provisions are found in many United States extradition
treaties.\448\
Article 5--Political and Military Offenses
Paragraph 1 prohibits extradition for political offenses.
This is a standard provision in recent United States
extradition treaties.
Paragraph 2 describes seven categories of offenses that,
for the purposes of the Treaty, shall not be considered to be
political offenses.
First, the political offense exception does not apply to a
murder or any other offense against the person of a Head of
State of the Contracting States or a member of the Head of
State's family.
Second, the political offense exception does not apply to
an offense for which both Contracting States are obligated
pursuant to a multilateral international agreement either to
extradite the person sought or to submit the case to their
competent authorities for decision regarding prosecution, such
as the United Nations Convention Against the Illicit Traffic in
Narcotic Drugs and Psychotropic Substances.\449\
Third, as set forth in Article 5(2)(c), the parties agreed
that the political offense exception does not apply to murder,
manslaughter, malicious wounding or inflicting grievous bodily
harm or other grievous injury to health.
Fourth, as set forth in Article 5(2)(d), the parties agreed
that the political offense exception does not apply to offenses
involving kidnapping, abduction, or unlawful detention,
including hostage taking.
Fifth, as set forth in Article 5(2)(e), the parties agreed
the political offense exception does not apply to the placement
or use of an explosive, incendiary or destructive device
capable of endangering life, of causing substantial bodily
harm, or of causing substantial property damage. Articles
5(2)(c), (d) and (e) narrow the scope of the political offense
exception to exclude terrorist-type offenses and ensure that
extradition will be mandatory under the Treaty for such
offenses.
The sixth exception set forth in Article 5(2)(f) ensures
that attempts to commit, or participation in the commission of,
any of the named offenses, as well as an association to commit
these offenses as provided by the laws of Poland, or conspiracy
to commit these offenses as provided by the laws of the United
States, are not considered political offenses under the Treaty
when they relate to an offense covered by Articles 5(2)(a)-(e).
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State determines
that the request was politically motivated.\450\ The
negotiators agreed that under paragraph 3 the executive
authority may refuse extradition when a request is not made in
good faith or when, in the executive's judgment, the fugitive
will not be able to obtain a fair trial in the Requesting
State. Under United States law and practice, the Secretary of
State has the sole discretion to determine whether an
extradition request is based on improper political
motivation.\451\
Paragraph 4 states that the executive authority of the
Requested State shall refuse extradition for offenses under
military law that are not punishable under ordinary criminal
law.\452\
Article 6--Capital Punishment
Paragraph 1 permits the Requested State to refuse
extradition in cases in which 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 assurances that the death penalty
will not be imposed, or, if imposed, will not be carried out.
Similar provisions are found in many recent United States
extradition treaties.\453\
The Polish delegation insisted on the inclusion of this
provision. Although a small number of offenses in Poland are
punishable by death under the law of Poland, the Polish
Parliament has issued a moratorium against carrying out any
death sentence imposed. This moratorium reflects the current
political trend in Poland, which is similar to several other
emerging democratic Eastern European countries, towards
reconsidering its position on capital punishment.
Paragraph 2 provides that when the Requesting State gives
assurances in accordance with paragraph 1, the assurances shall
be respected and the death penalty, if imposed, shall not be
carried out.
Article 7--Prior Prosecution
This article, while prohibiting extradition if a person has
been prosecuted in the Requested State for the same offense,
permits extradition when the person sought is charged by each
Contracting State with different offenses arising out of the
same basic transaction.
Paragraph 1, which prohibits extradition if the person
sought has been convicted or acquitted with final binding
effect in the Requested State for the offense for which
extradition is requested, is similar to language present in
many United States extradition treaties. This provision applies
only when the person sought has been convicted or acquitted in
the Requested State of exactly the same crime that is charged
in the Requesting State. It is not enough that the same facts
were involved. Thus, if the person sought is accused by one
Contracting State of illegally smuggling narcotics into that
country, and is charged by the other Contracting State with
unlawfully exporting the same shipment of drugs, an acquittal
or conviction in one Contracting State does not insulate that
person from extradition because different crimes are involved.
The negotiators agreed extradition is not to be denied on the
basis that a fugitive has been prosecuted in a third state for
the same offense.
Paragraph 2 (a) and (b) make it clear that neither
Contracting State may refuse to extradite a person sought on
the basis that the Requested State's authorities declined to
prosecute the person or instituted and later discontinued
proceedings against the person. This provision was included
because a decision of the Requested State to forego prosecution
or to drop charges previously filed could be the result of a
failure to obtain sufficient evidence or witnesses for trial,
whereas the Requesting State's prosecution might not suffer
from the same impediments. This provision should enhance the
ability of the Contracting States to extradite to the
jurisdiction with the better chance of a successful
prosecution.
Article 8--Lapse of Time
This article states that extradition must be denied if, at
the time the extradition request is received, the prosecution
of the offense or the enforcement of the penalty is barred by
lapse of time under the law of the Requesting State. Similar
provisions appear in several United States extradition
treaties. The reference to ``enforcement of the penalty''
reflects the fact that Poland, like many civil law countries,
has a statute of limitations relating to such matters in
addition to a statute of limitation on prosecutions. The
article indicates that the Requested State should not deny the
request if the statute of limitations expires after the
Requested State receives the request.
Article 9--Extradition Procedures and Required Documents
This article sets forth the documentary and evidentiary
requirements for an extradition request. Similar articles are
found in most recent United States extradition treaties.
Paragraph 1 requires that each formal request for
extradition be made through the diplomatic channel. A formal
extradition request may be preceded by a request for the
provisional arrest of the person sought pursuant to Article 12.
Provisional arrest requests need not be made through the
diplomatic channel provided that the requirements of Article 12
are met.
Paragraph 2 specifies the information that must accompany
each request for extradition under the Treaty. 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 text of the
law describing the essential elements of the offense for which
extradition is requested,'' which enables the Requested State
to determine easily whether the request satisfies the
requirement for dual criminality under Article 2. Paragraph
2(e) facilitates the determination regarding the statute of
limitations under Article 8 by requiring information both on
the time limit for prosecution and on interruption or
suspension of the time limit.
Paragraph 3 lists the additional information needed when
the person is sought for trial in the Requesting State.
Paragraph 3 (c) requires that if the person sought has not been
convicted of the crime for which extradition is requested, the
Requesting State must provide, in addition to a copy of the
arrest warrant and charging document, ``such information as
would justify the committal for trial of the person if the
offense had been committed in the Requested State.'' In Poland,
as in many European nations, the law permits extradition
without review of any evidence, provided the arrest warrant and
formal documents are presented. Under U.S. law, there must be
an examination of the facts to establish probable cause to
believe that an offense was committed and that the fugitive
committed it.\454\ This provision requires that the Requesting
State submit such information as meets the requirements of the
Requested State.
Paragraph 4 lists the information needed, in addition to
the requirements of paragraph 2, when the person sought has
already been found guilty of an offense in the Requesting
State. It clarifies 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.\455\
Paragraph 4(a) requires that the Requesting State must
provide a copy of a warrant or order of arrest, if any, issued
by a judge or other competent authority.
Paragraph 4(b) requires a copy of the judgment of
conviction or, if such copy is not available, a statement by a
judicial authority that the person has been found guilty.
Paragraph 4(c) provides that the Requesting State must
submit information establishing that the person sought is the
person to whom the finding of guilt refers.
Paragraph 4(d) requires a copy of the sentence imposed, if
the person sought has been sentenced, and a statement
establishing to what extent the sentence has been carried out.
Paragraph 4(e) provides that if a person sought was found
guilty in absentia, the documentation required includes both
proof of conviction and the same documentation as in cases in
which no conviction has been obtained. This provision is
consistent with the long-standing United States policy of
requiring such documentation in the extradition of persons
convicted in absentia.
Article 10--Admissibility of Documents
Article 10 pertains to the authentication procedures for
the documents provided by the Requesting State so that the
documents are received and admitted in the Requested State's
extradition proceeding.
The article states that when the United States is the
Requesting State, the documents in support of extradition must
be admitted into evidence if they are authenticated by the U.S.
Department of State. With a request from Poland, the documents
are to be admitted into evidence in the U.S. extradition
proceeding if they have been certified by the principal
diplomatic or consular officer of the United States resident in
Poland, as is provided under United States extradition
law.\456\
Paragraph (c) provides that documents shall also be
admitted into evidence if authenticated in any other manner
accepted by the law of the Requested State. For example, there
may be information in the Requested State itself that is
relevant and probative to extradition, and the Requested State
itself is free under (c) to utilize that information if the
information satisfies the ordinary rules of evidence in that
state. This ensures that evidence that is acceptable under the
evidentiary rules of the Requested State may be used in
extradition proceedings even if it is not otherwise
authenticated pursuant to the Treaty. This paragraph also
should ensure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing simply because of an
inadvertent error or omission in the authentication process.
Article 11--Translation
This article requires that all documents submitted by the
Requesting State shall be translated into the language of the
Requested State. Therefore, all documents submitted by the
United States shall be translated into Polish, and all
documents submitted by Poland shall be translated into English.
Article 12--Provisional Arrest
This article describes the process by which a person sought
in one Contracting State may be arrested and detained in the
other while the formal extradition documentation is prepared by
the Requesting State.
Paragraph 1 provides that a request for provisional arrest
may be made through the diplomatic channel or directly between
the United States Department of Justice and the Ministry of
Justice of the Republic of Poland. The provision also specifies
that INTERPOL may be used to transmit such a request.
Paragraph 2 sets forth the information that the Requesting
State must provide in support of such a request.
Paragraph 3 requires that the Requested State notify the
Requesting State without delay of the disposition of its
application for provisional arrest and the reasons for any
denial.
Paragraph 4 provides that the person who is provisionally
arrested may be released from detention if the Requesting State
does not submit a fully documented request for extradition to
the executive authority of the Requested State within 60 days
of the provisional arrest. When the United States is the
Requested State, it is sufficient for purposes of this
paragraph if the documents are received by the Secretary of
State or the U.S. Embassy in Warsaw, Poland.\457\
Although the person sought may be released from custody if
the documents are not received within the 60-day period or any
extension thereof, the extradition proceedings against the
fugitive need not be dismissed. The final paragraph in this
article makes it clear that in such a case the person may be
taken into custody again, and the extradition proceedings may
commence, if the formal request and supporting documents are
received at a later date.
Article 13--Additional Information
This article states that if the Requested State considers
the information furnished in support of the request for
extradition insufficient under its law with respect to
extradition, it may ask that the Requesting State submit
supplementary information within a reasonable length of time as
it specifies. This article is intended to permit the Requesting
State to cure defects in the request and accompanying materials
that are found by a court in the Requesting State or by the
attorney acting on behalf of the Requesting State, and to
permit the court, in appropriate cases, to grant a reasonable
continuance to obtain, translate, and transmit additional
materials. A similar provision is found in other United States
extradition treaties.\458\
Article 14--Decision and Surrender
This article provides that the Requested State promptly
notify the Requesting State of its decision on the request for
extradition. The delegations agreed the notification could be
through informal channels, such as the respective Justice
Ministries, and that formal notice in the form of a diplomatic
note should follow. If the request is denied in whole or in
part, the Requested State must provide explanation of the
reasons for the denial. If extradition is granted, this article
provides that authorities of the Contracting States shall agree
on a time and place for the surrender of the person sought. The
Requesting State must remove the person within such time as may
be prescribed by the law of the Requested State or, if not
prescribed by the law of the Requested State, within 30 days
from the date on which the Requesting State is notified of the
extradition decision. If surrender does not occur within this
time period, the person may be discharged from custody, and the
Requested State may subsequently refuse to extradite the person
for the same offense. United States law requires that surrender
occur within two calendar months of a finding that the person
is extraditable,\459\ or of the conclusion of any litigation
challenging that finding,\460\ whichever is later. The law in
Poland does not specify a time by which a person must be
removed.
Paragraph 6 provides that if circumstances beyond the
control of a Contracting State prevent it from timely
surrendering or taking delivery of the person to be extradited,
it shall notify the other Contracting State before the
expiration of the time limit and the Contracting States may
agree upon a new date for the surrender.
Article 15--Convictions in Absentia
This article concerns the extradition of persons who have
been convicted in absentia. Specifically, this article provides
that if a Contracting State applies to the other State for
extradition of a person convicted in absentia, the executive
authority of the Requested State may refuse to surrender the
person if it deems that the in absentia proceedings did not
ensure the minimum right to defense to which the charged person
is entitled. If, however, the Requesting State guarantees, in a
manner deemed adequate, that the case against the person whose
extradition is requested will be reopened with a guaranteed
right of defense, the Requested State may grant extradition.
For Poland, a conviction in absentia means that the person
has been both convicted and sentenced in absentia. For the
United States, a conviction in absentia means only that the
person has been found guilty in absentia, but not yet
sentenced.
Article 16--Temporary and Deferred Surrender
Occasionally, a person sought for extradition may already
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 and
the full execution of any punishment imposed.
Paragraph 1 provides for the temporary surrender of a
person sought for prosecution in the Requesting State who is
being proceeded against or serving a sentence in the Requested
State. A person thus surrendered shall be 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 probability of a successful
prosecution. Such transfer may also be advantageous to the
person sought in that it: (1) permits resolution of the charges
sooner; (2) may make it possible for any sentence to be served
in the Requesting State concurrently with the sentence in the
Requested State, subject to the laws in each state; and (3)
permits a defense against the charges while favorable evidence
is fresh and more likely to be available. Such provisions are
found in many recent extradition treaties.
Paragraph 2 provides that the executive authority of the
Requested State may postpone the extradition proceedings
against a person who is serving a sentence in the Requested
State until the full execution of any punishment that has been
imposed.\461\ The wording of the provision also allows the
Requested State to postpone the surrender of a person facing
prosecution or serving a sentence, even if all necessary
extradition proceedings have been completed.
Article 17--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties in listing some of the factors that
the executive authority of the Requested State must consider
when reviewing requests from two or more countries for the
extradition of the same person. For the United States, the
Secretary of State decides to which country the person should
be surrendered.\462\
Article 18--Seizure and Surrender of Property
This article permits the seizure by the Requested State of
all items--articles, documents, and other evidence, and
proceeds--connected with the offense for which extradition is
requested to the extent permitted by the Requested State's
internal law. The article also provides that these items may be
surrendered to the Requesting State upon the granting of the
extradition or even if extradition cannot be effected due to
the death, disappearance or escape of the person sought.
Paragraph 2 states that the Requested State may condition
its surrender of items upon satisfactory assurances that the
items will be returned to the Requested State as soon as
practicable. Paragraph 2 also permits the surrender of items to
be deferred if they are needed as evidence in the Requested
State.
Paragraph 3 makes the surrender of items expressly subject
to due respect for the rights of third parties in such
property.
Article 19--Rule of Speciality
This article deals with the principle known as the rule of
speciality, a standard aspect of United States extradition
practice. Designed to ensure that a fugitive surrendered for
one offense is not tried for other crimes, the rule of
speciality prevents a request for extradition from being used
as a subterfuge to obtain custody of a person for trial or
execution of a sentence on different charges that are not
extraditable or properly documented in the request.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, prosecuted, sentenced, or punished in the
Requesting State for: (1) the offense for which extradition was
granted or a differently denominated offense based on the same
facts, provided the offense is extraditable or is a lesser
included offense; (2) an offense committed after the
extradition; or (3) an offense for which the executive
authority of the Requested State consents.\463\ The contracting
parties agreed that the lesser included offense need not be a
felony.
Paragraph 1(c) permits the Requested State to require the
Requesting State seeking consent to prosecute for new charges
to submit documents identified in Article 9 and a statement of
the position of the person whose extradition is sought.
Paragraph 1(c)(ii) permits the Requesting State to detain the
person extradited for 90 days or for such longer period as the
Requested State may authorize, while the Requested State makes
its determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third state for a crime committed
prior to this extradition under this Treaty, without the
consent of the Requested State.
Paragraph 3 removes the restrictions of paragraphs 1 and 2
on the detention, prosecution, sentencing, or punishment of an
extradited person for additional offenses or extradition to a
third state if: (1) the extradited person leaves the Requesting
State after extradition and voluntarily returns to it; or (2)
the extradited person does not leave the Requesting State
within 30 days of being free to do so.
Article 20--Simplified Extradition
Persons sought for extradition often elect to waive their
right to extradition proceedings in order to expedite their
return to the Requesting State. This article provides that if
(1) the extradition of a person sought is not obviously
precluded by the laws of the Requested State and (2) the person
sought irrevocably agrees in writing to his extradition after
personally being advised by a judge or competent magistrate of
his rights to formal extradition proceedings and the protection
afforded by them that he would lose, the person may be returned
to the Requesting State without further proceedings.
United States practice dictates that when a fugitive waives
extradition and voluntarily returns to the Requesting State,
the rule of speciality does not apply. The second sentence of
this article, therefore, states that the rule of speciality in
article 19 will not apply to cases in which this article is
utilized.
Article 21--Transit
Paragraph 1 gives each Contracting State the power to
authorize transit through its territory of a person being
surrendered to the other Contracting State by a third state. A
person in transit may be detained in custody during the transit
period. Requests for transit are to contain a description of
the person being transported and a brief statement of the facts
of the case for which the person is sought. Requests for
transit may be made through the diplomatic channel, directly
between the United States Department of Justice and the
Ministry of Justice of the Republic of Poland or through the
facilities of INTERPOL. A person may be detained in custody
during the period of transit.
Paragraph 2 provides that no advance authorization is
needed if the person in custody is in transit to one of the
Contracting States and is traveling by aircraft and no landing
is scheduled in the territory of the other. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant such a
request. It also permits the transit State to detain a fugitive
until a request for transit is received and executed, so long
as the request is received within 96 hours of the unscheduled
landing.
Article 22--Representation and Expenses
Paragraph 1 provides that the Requested State shall assist,
appear in court for, and represent the interests of, the
Requesting State in extradition request proceedings. Thus, the
United States will provide complete representation for Poland,
and Poland will provide complete representation for the United
States.
Paragraph 2 states that the Requesting State shall bear the
expenses of translation and transportation of the person
sought, and that the Requested State shall pay all other
expenses.
Paragraph 3 provides that neither Contracting State shall
make a pecuniary claim against the other in connection with
extradition proceedings. The negotiators for both Poland and
the United States agreed that the term ``extradition
procedures'' includes, but is not limited to, proceedings
involving arrest, detention, examination or surrender of the
person sought. In addition, the extradition procedures include
any claim by the fugitive for damages, reimbursement of legal
fees, or other expenses occasioned by the execution of the
extradition request.
Article 23--Consultation
Paragraph 1 of this article provides that the United States
Department of Justice and the Ministry of Justice of the
Republic of Poland may consult with each other, directly or
through INTERPOL, regarding an individual extradition case or
extradition procedures in general. A similar provision is found
in other recent United States extradition treaties.\464\
Paragraph 2 provides that, upon the request of the
Requested State, the Requesting State shall inform the
Requested State of the status of criminal proceedings against
persons who have been extradited, and shall provide a copy of
the final and binding decision if one has been issued in the
case in question.
Article 24--Application
This Treaty, like most United States extradition treaties
negotiated in the last two decades, is expressly made
retroactive to cover offenses that occurred before as well as
after the Treaty enters into force. This Treaty provides
further, however, that if an offense was committed before this
Treaty enters into force and was not an offense under the laws
of both Contracting States at the time of its commission, then
the executive authority of the Requested State may use its
discretion to grant extradition.
Article 25--Executive Authorities
This article defines who the executive authority is for
each of the Contracting States. This provision provides that
the United States executive authority shall be the Secretary of
State or a person designated by the Secretary of State and the
Polish executive authority shall be the Minister of Justice/
Attorney General or a person designated by the Minister of
Justice/Attorney General. In Poland, the Public Prosecutor's
office is a part of the Ministry of Justice; they are not two
separate entities. Moreover, the Polish Minister of Justice/
Attorney General is the title of one person, not two separate
people.
Article 26--Ratification and Entry into Force
The first paragraph of this article contain standard treaty
language providing for the exchange of instruments of
ratification. Paragraph two specifies the day on which the
Treaty will enter into force after the exchange.
Paragraph 3 provides that the 1927 Treaty and the
Supplementary Extradition Treaty of 1935 will cease to have any
effect upon the entry into force of the Treaty, but extradition
requests pending when the Treaty enters into force will
nevertheless be processed to conclusion under the 1927 Treaty
and the 1935 Supplementary Extradition Treaty. Nevertheless,
Articles 2 (extraditable offenses), 3 (fiscal offenses), 5
(political and military offenses), 16 (temporary and deferred
surrender), 19 (rule of speciality), and 20 (simplified
extradition) of this Treaty will be available in such
extradition proceedings. This paragraph also provides that
Article 19 (rule of speciality) also applies to persons found
extraditable under the prior Treaty.
Article 27--Termination
This article contains standard treaty language describing
the procedure for termination of the Treaty by either
Contracting State. Termination becomes effective six months
after the date such notice is received.
Technical Analysis of the Third Supplementary Extradition Treaty
Between the United States of America and the Kingdom of Spain signed
March 1, 1996
On March 1, 1996, the United States and Spain signed the
Third Supplementary Extradition Treaty, modifying the terms of
the existing 1970 Treaty on Extradition, the Supplemental
Treaty on Extradition of 1975, and the Second Supplementary
Extradition Treaty of 1988. (Hereinafter the 1970 Treaty, with
the Supplemental Treaty and the Second Supplementary Treaty, is
referred to as ``the Extradition Treaty''). The Third
Supplementary Extradition Treaty is intended to improve the
extradition relationship between the two countries by removing
amnesties and the application of the statute of limitations as
impediments to extradition and by facilitating future
extraditions by application of a simplified procedure for
extradition.
Article 1
Article 1 establishes a new Article II Bis to be added to
the Extradition Treaty, which removes two impediments to
extradition: expiration of the statute of limitations in either
of the contracting parties and an amnesty promulgated in the
Requested Party.
Article II Bis paragraph A provides that, all other
requirements having been met, ``extradition shall also be
granted even if, in accordance with the laws of the Requested
Party, the prosecution or the penalty would have been barred by
the statute of limitations.'' By this provision, the
negotiators intended that the expiration of the statute of
limitations of the Requested Party not be a basis for denial of
extradition. New Article II Bis A further states that ``[t]he
Requested Party shall be bound by the statement of the
Requesting Party that the statute of limitations of the
Requesting Party does not bar the prosecution or the execution
of the penalty.'' This provision is intended to bind the
contracting parties to accept, without further review or
consideration, the statement of the Requesting Party that that
state has made the appropriate analysis of its own statute of
limitations and has determined that prosecution or imposition
of the penalty are not barred by its domestic law. The
negotiators agreed that an extradition request would not be
made in cases where the statute of limitations had already
expired in the potential Requesting State.
The first sentence in paragraph A is carefully worded to
provide that extradition shall be granted ``even if'' the
prosecution or the penalty would have been barred by the
statute of limitations in the Requested Party. Negotiators
opted for this language because under Spanish law, Spanish
judicial authorities are obligated to consider the expiration
of the Spanish statute of limitations in the context of an
extradition hearing. By providing that the extradition shall be
granted ``even if'' the Spanish statute of limitations has
expired, this Article creates an obligation to extradite
despite the possible conclusion by a court in the Requested
Party that if the offense had been committed in the Requested
Party, that state's statute of limitations would have expired.
Article II Bis paragraph B provides that, ``an amnesty
promulgated in the Requested Party shall not constitute an
obstacle to extradition.'' This provision is intended to ensure
that amnesties, which are sometimes promulgated in Spain, will
not bar the extradition of fugitives sought by the United
States and charged with committing the offense for which the
amnesty has been promulgated in Spain. United States
negotiators explained that amnesties are rare under United
States law. Therefore, it is not anticipated that this
provision will have wide application in the United States. On
the other hand, it will work for the benefit of the United
States in those instances in which Spain promulgates an amnesty
applicable to the offense for which extradition is sought.
Article 2
Article 2 modifies Article V(A) of the Extradition Treaty
by deleting the provision permitting denial of extradition as a
result of expiration of the statute of limitations of either of
the Contracting Parties, thereby bringing Article V(A) into
accord with new Article II Bis.
Article 3
Article 3 modifies Article X(B)(3) of the Extradition
Treaty, which defines the legal texts that should accompany the
extradition request, by deleting the reference to providing
legal texts on the subject of statutes of limitations. The
modification in Article 3 now requires that the formal
extradition documents include ``the text of the applicable laws
of the Requesting Party including the law defining the offense
and the law establishing the punishment.'' As Article V(A)(3)
of the Extradition Treaty no longer permits denial of
extradition due to expiration of the statute of limitations,
the legal texts on limitations are no longer relevant, and
consequently there is no need to include such texts as part of
the formal extradition documentation.
To meet the requirement in Article II Bis(A) that the
Requested Party be bound by the statement of the Requesting
Party that the prosecution or imposition of the penalty is not
barred under the laws of the Requesting Party, Article 3 adds a
new paragraph 4 to Article X(B), requiring the formal
extradition documentation to include ``[a] statement that
neither the prosecution nor the execution of the penalty are
barred according to the legislation of the Requesting Party.''
Article 4
Article 4 creates a new Article XVI Bis, permitting the
Requested Party to surrender an individual sought for
extradition without the production of formal extradition
documentation required under Article X of the Extradition
Treaty, if the individual consents to such surrender before a
judicial authority. The individual may also consent to a waiver
of the Rule of Speciality applicable under Article XIII of the
Extradition Treaty.
Article XVI Bis creates the possibility of a simplified
extradition, which should in future expedite and facilitate the
extradition of individuals. Rather than creating specific
procedures for these cases, new Article XVI Bis provides that
such cases shall be processed in accordance with the procedures
of the Requested Party.
Article 5
Article 5 provides that the Supplementary Treaty will
constitute an integral part of the Extradition Treaty, and
establishes the conditions for entry into force. The
Supplementary Treaty shall be subject to ratification, exchange
of instruments of ratification and termination in accordance
with the provisions of the Extradition Treaty. The
Supplementary Treaty will enter into force 30 days after
exchange of the instruments of ratification.
Technical Analysis of The Extradition Treaty Between The United States
of America and the Trinidad and Tobago signed March 4, 1996
On March 4, 1996, the United States signed a treaty on
extradition with the Trinidad and Tobago (hereinafter ``the
Treaty''). In recent years, the United States has signed
similar treaties with many other countries as part of a highly
successful effort to modernize our law enforcement relations.
The new extradition treaty will replace the treaty now in
force,\465\ and constitutes a major step forward in the United
States' efforts to win the cooperation of countries in the
region in combating organized crime, transnational terrorism,
and international drug trafficking.
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. Trinidad and Tobago
has its own internal law\466\ that will apply to United States'
requests under the Treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
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 Contracting Party persons
charged with or convicted of an extraditable offense, subject
to the provisions of the Treaty. The article refers to charges
brought by authorities ``in'' the Requesting State rather than
``of'' the Requesting State, since the obligation to extradite,
in cases arising from the United States, would include state
and local prosecutions as well as federal cases. The
negotiators also agreed that the term ``convicted'' includes
instances in which the person has been found guilty but the
sentence has not yet been imposed.\467\ The negotiators
intended to make it clear that the Treaty applies to persons
adjudged guilty who flee prior to sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what constitutes an extraditable offense. This Treaty, similar
to the recent United States extradition treaties with Jamaica,
Jordan, 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
under the laws of the United States. This paragraph permits
extradition under the laws of Trinidad and Tobago for any
indictable offense. 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 Contracting Parties 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.
During the negotiations, the United States delegation
received assurances from the Trinidad and Tobago delegation
that major United States offenses such as operating a
continuing criminal enterprise\468\ are extraditable under the
Treaty, and that offenses under the Racketeer Influenced and
Corrupt Organizations (``RICO'') statutes\469\ are extraditable
if the predicate offense is an extraditable offense. The
Trinidad and Tobago delegation also stated that extradition is
possible for offenses such as drug trafficking, terrorism,
money laundering, tax fraud or tax evasion, crimes against
environmental law, and antitrust violations punishable by both
Contracting Parties.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition be granted for
attempting or conspiring to commit, aiding or abetting,
counseling, causing, or procuring, or otherwise being an
accessory to an extraditable offense. As conspiracy charges are
frequently 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.
Trinidad and Tobago has no general conspiracy statute similar
to Title 18, United States Code, Section 371. Therefore,
paragraph 2 creates an exception to the dual criminality rule
of paragraph 1 by expressly making inchoate crimes such as
conspiracy extraditable offenses if the object of the inchoate
offense is an extraditable offense pursuant to paragraph 1.
Paragraph 3 reflects the intention of the Contracting
Parties to interpret the principles of this article broadly.
Judges in foreign countries often are 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
requirements 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 be disregarded in applying the dual criminality
principle. For example, it will ensure that Trinidad and Tobago
authorities treat United States mail fraud charges\470\ in the
same manner as fraud charges under state laws, and view the
federal crime of interstate transportation of stolen
property\471\ in the same manner as unlawful possession of
stolen property. This paragraph also requires the 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 the Contracting Parties. A similar
provision is contained in all recent United States extradition
treaties. Subsection (c) of this paragraph includes language
from the UN Model Treaty on Extradition, Article 2(2)(b) and
reflects the intention of both Parties to take tax, customs,
and currency reporting offenses very seriously, and to
interpret the treaty as broadly to effect extradition for such
offenses.
Paragraph 4 deals with the fact that federal crimes may
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes the jurisdiction of our courts to
hear criminal cases involving 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.\472\ In Trinidad and Tobago, however, the
government's ability to prosecute extraterritorial offenses is
much more limited. Paragraph 4 reflects the Trinidad and Tobago
government's agreement to recognize United States jurisdiction
to prosecute offenses committed outside the United States if
Trinidad and Tobago law would permit Trinidad and Tobago to
prosecute similar offenses committed abroad in corresponding
circumstances. If the Requested State's laws do not so provide,
the final sentence of the paragraph states that extradition may
be granted, but the executive authority of the Requested State
has the discretion to deny the request.
Paragraph 5 states 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 Trinidad and Tobago agrees to extradite to the United States
a fugitive wanted for prosecution on a felony charge, the
United States may also obtain extradition for any misdemeanor
offenses that have been charged, as long as those misdemeanors
are also recognized as criminal offenses in Trinidad and
Tobago. 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 extraditable offense. This practice
is generally desirable from the standpoint of both the fugitive
and the Requesting State in that it permits all charges to be
disposed of more quickly, thereby facilitating trials while
evidence is fresh and permitting the possibility of concurrent
sentences. Similar provisions are found in recent United States
extradition treaties with Australia, Ireland, Italy and Costa
Rica.
Paragraph 6 states that extradition may not be refused in
regards to fiscal matters on the basis that the Requested State
does not impose the same kind of fiscal law. This language
comes from the United Nations Model Treaty on Extradition,
Article 2(3).
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served.\473\
This Treaty, like most U.S. extradition treaties in the past
two decades, contains no such requirement. Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Nationality
Some countries refuse to extradite their own nationals for
trial and/or punishment, or are prohibited from doing so by
their statutes or constitution. The United States does not deny
extradition on the basis of the offender's citizenship\474\ and
neither does Trinidad and Tobago. Accordingly, this article
provides that extradition is not to be refused based on the
nationality of the person sought.
Article 4--Political and Military Offenses
Paragraph 1 prohibits extradition for offenses of a
political character. This is a standard provision in recent
United States extradition treaties.
Paragraph 2 describes three categories of offenses that
shall not be considered political offenses.
First, the political offense exception does not apply to
murder or other willful crimes against the person of a Head of
State of the Contracting Parties, or a member of the Head of
State's family.
Second, the political offense exception does not apply to
offenses for which both Contracting Parties have an obligation
pursuant to a multilateral international agreement either to
extradite the person sought or to submit the case to their
competent authorities for prosecution, such as the United
Nations Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances.\475\
Paragraph 2(c) states that the political offense exception
does not apply to conspiring or attempting to commit, or aiding
or abetting the commission or attempted commission of, any of
the foregoing offenses.
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State determines
that the request is politically motivated.\476\ United States
law and practice have been that the Secretary of State has the
sole discretion to determine whether an extradition request is
based on improper political motivation.\477\
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\478\
Article 5--Prior Prosecution
This article permits extradition when the person sought is
charged by each Contracting Party with different offenses
arising out of the same basic transaction.
Paragraph 1, which prohibits extradition if the person
sought has been convicted or acquitted in the Requested State
for the offense for which extradition is requested, is similar
to language present in many United States extradition
treaties.\479\ This provision applies only when the person
sought has been convicted or acquitted in the Requested State
of exactly the same crime that is charged in the Requesting
State. It is not enough that the same facts were involved.
Thus, if the person sought is accused by one Contracting Party
of illegally smuggling narcotics into that country, and is
charged by the other Contracting Party with unlawfully
exporting the same shipment of drugs, an acquittal or
conviction in one Contracting Party does not insulate that
person from extradition because different crimes are involved.
Paragraph 2 makes it clear that neither Contracting Party
may refuse to extradite a person sought on the basis that the
Requested State's authorities declined to prosecute the person
or instituted and later discontinued proceedings against the
person. This provision was included because a decision of the
Requested State to forego prosecution or to drop charges
previously filed could be the result of a failure to obtain
sufficient evidence or witnesses for trial, whereas the
Requesting State's prosecution might not suffer from the same
impediments. This provision should enhance the ability of the
Contracting Parties to extradite to the jurisdiction with the
better chance of a successful prosecution.
Article 6--Lapse of Time
Article 6 states that the decision to deny an extradition
request must be made without regard to provisions of the law
regarding lapse of time in either the requesting or requested
states.\480\ The U.S. and Trinidad delegations agreed that a
claim that the statute of limitations has expired is best
resolved by the courts of the Requesting State after the
fugitive has been extradited.
Article 7--Extradition Procedures and Required Documents
This article sets forth the documentary and evidentiary
requirements for an extradition request. Similar articles are
present in 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 person sought pursuant to Article 9.
Provisional arrest requests need not be initiated through the
diplomatic channel provided that the requirements of Article 9
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
found guilty 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 text of the relevant provision of the laws of the
Requesting State describing the offense or where necessary a
statement of the provisions of law describing the essential
elements of the offense for which extradition is requested,''
which enables the Requested State to determine easily whether
the request satisfies the requirement for dual criminality
under Article 2. Some of the items listed in paragraph 2,
however, are required strictly for informational purposes.
Thus, paragraph 2(e) calls for ``a statement of the provisions
of law describing any time limit on prosecution or the
execution of the punishment for the offense,'' even though the
Treaty does not permit denial of extradition based on lapse of
time. The United States and Trinidad delegations agreed that
paragraph 2(e) should require this information so that the
Requested State is fully informed about the charges brought in
the Requesting State.
Paragraph 3 requires that if the fugitive has not yet been
convicted of the crime for which extradition is requested, the
Requesting State must provide such evidence as would justify
the issue of a warrant for arrest if the offense had been
committed in the Requested State. This provision will alleviate
one of the major practical problems with extradition from
Trinidad. The Treaty currently in force permits extradition
only if ``. . . the evidence be found sufficient, according to
the laws of the High Contracting Party applied to, either to
justify the committal of the prisoner for trial, in the case
the crime or offense had been committed in the territory of
such High Contracting party, or to prove that the person is the
identical person convicted by the courts of the High
Contracting Party who makes the requisition . . .''. Trinidad's
courts have interpreted this clause to require that a prima
facie case against the defendant be shown before extradition
will be granted.\481\ By contrast, U.S. law permits extradition
if there is probable cause to believe that an extraditable
offense was committed and the offender committed it.\482\
Trinidad's agreement to extradite under the new Treaty based on
evidence that would justify the issue of an arrest warrant
eliminates this imbalance in the burden of proof for
extradition, and should significantly improve the United
States' ability to extradite from Trinidad.
Paragraph 4 lists the information required to extradite a
person who has been convicted 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.\483\ Subsection (d) states that if
the person sought was found guilty in absentia, the
documentation required for extradition includes both proof of
conviction and the same documentation required in cases in
which no conviction has been obtained. This is consistent with
the long-standing United States policy of requiring such
documentation in the extradition of persons convicted in
absentia.
Article 8--Admissibility of Documents
Article 8 governs the authentication procedures for
documents prepared for use in extradition cases.
The article states that when the United States is the
Requesting State, the documents in support of extradition must
be authenticated by an officer of the United States Department
of State and certified by the principal diplomatic or consular
officer of Trinidad and Tobago resident in the United States.
This is intended to replace the cumbersome and complicated
procedures for authenticating extradition documents applicable
under the current law in Trinidad.\484\ When the request is
from Trinidad and Tobago, the documents must be certified by
the principal diplomatic or consular officer of the United
States resident in Trinidad and Tobago, in accordance with
United States extradition law.\485\
The third subparagraph of the article permits documents to
be admitted into evidence if they are authenticated in any
other manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition, and the
Requested State is free under subsection (c) to utilize that
information if the information satisfies the ordinary rules of
evidence in that state. This ensures that evidence which is
acceptable under the evidentiary rules of the Requested State
may be used in extradition proceedings even if it is not
otherwise authenticated pursuant to the treaty. This paragraph
also should ensure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing simply because of an
inadvertent error or omission in the authentication process.
Article 9--Provisional Arrest
This article describes the process by which a person in one
Contracting Party may be arrested and detained while the formal
extradition papers are being prepared by the Requesting State.
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
the Attorney General in Trinidad and Tobago. The provision also
indicates that INTERPOL may be used to transmit such a request.
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 be
advised without delay of the outcome of the request and the
reasons for its denial, if any.
Paragraph 4 provides that a person who has been
provisionally arrested may be released from detention if the
Requesting State does not submit a fully documented request for
extradition to the executive authority of the Requested State
within 60 days of the provisional arrest. When the United
States is the Requested State, the executive authority includes
the Secretary of State and the United States Embassy in Port of
Spain.\486\
Although the person sought may be released from custody if
the documents are not received within the sixty day period or
any extension thereof, the extradition proceedings against the
fugitive need not be dismissed. Paragraph 5 makes it clear that
the person may be taken into custody again and the extradition
proceedings may commence if the formal request is presented
subsequently.
Article 10--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
in whole or in part, the Requested State must provide the
reasons for the denial. If extradition is granted, this article
provides that that authorities of the Contracting Parties shall
agree on a time and place for surrender of the person sought.
The Requesting State must remove the person 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. United States law requires that surrender occur within
two calendar months of a finding that the person is
extraditable,\487\ or of the conclusion of any litigation
challenging that finding,\488\ whichever is later. The law in
Trinidad and Tobago permits the person to apply to a judge for
release if he has not been surrendered within two months of the
first day on which he could have been extradited.\489\
Article 11--Temporary and Deferred Surrender
Occasionally, a person sought for extradition may already
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 and
the full execution of any punishment imposed.
Paragraph 1 provides for the temporary surrender of a
person wanted 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 the Treaty
will be 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 a successful prosecution. Such transfer may also be
advantageous to the person sought in that: (1) it permits
resolution of the charges sooner; (2) subject to the laws in
each state, 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. Similar provisions are found in many recent
extradition treaties.
Paragraph 2 provides that the executive authority of the
Requested State may postpone the extradition proceedings
against a person who is serving a sentence in the Requested
State until the full execution of any punishment that has been
imposed.\490\ The wording of the provision also allows the
Requested State to postpone the surrender of a person facing
prosecution or serving a sentence, even if all necessary
extradition proceedings have been completed.
Article 12--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties in listing some of the factors that
the executive authority of the Requested State must consider
when reviewing requests from two or more countries for the
extradition of the same person. For the United States, the
Secretary of State decides to which country the person should
be surrendered;\491\ for Trinidad and Tobago, the decision
would be made by the Attorney General.\492\
Article 13--Seizure and Surrender of Property
This article permits the seizure by the Requested State of
all property--articles, instruments, objects of value,
documents or other evidence--connected with the offense for
which extradition is requested, to the extent permitted by the
Requested State's internal law. The article also provides that
these objects may be surrendered to the Requesting State upon
the granting of the extradition or even if extradition cannot
be effected due to the death, disappearance or escape of the
person sought.
Paragraph 2 states that the Requested State may condition
its surrender of property upon satisfactory assurances that the
property will be returned to the Requested State as soon as
practicable. Paragraph 2 also permits the surrender of property
to be deferred if it is needed as evidence in the Requested
State.
Paragraphs 3 makes the surrender of property expressly
subject to due respect for the rights of third parties in such
property.
Article 14--Rule of Speciality
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 speciality prevents
a request for extradition from being used as a subterfuge to
obtain custody of a person for trial or execution of a sentence
on different charges that are not extraditable or properly
documented in the request.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, tried, or punished in the Requesting State for:
(1) the offense for which extradition was granted or a
differently denominated offense based on the same facts,
provided the offense is extraditable or is a lesser included
offense; (2) an offense committed after the extradition; or (3)
an offense for which the executive authority of the Requested
State consents.\493\ Paragraph 1(c)(ii) permits the Contracting
Party that is seeking consent to pursue new charges to detain
the person extradited for 60 days or for such longer period as
the Requested State may authorize while the Requested State
makes its determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third state, for a crime committed
prior to his extradition under this Treaty, without the consent
of the Requested State.
Paragraph 3 removes the restrictions of paragraphs 1 and 2
on detention, trial or punishment of an extradited person for
additional offenses or extradition to a third state if: (1) the
extradited person leaves the Requesting State after extradition
and voluntarily returns to it; or (2) the extradited person
does not leave the Requesting State within thirty days of being
free to do so.
Article 15--Waiver of 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
that when a fugitive consents to surrender to the Requesting
State, the person may be returned to the Requesting State as
expeditiously as possible without further proceedings. The
negotiators anticipated that in such cases, there will be no
need for the formal documentation described in Article 7, 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 Trinidad and Tobago
before the United States Secretary of State signs a surrender
warrant, the United States would not view the process as an
``extradition.'' Long-standing United States policy has been
that the rule of speciality as described in Article 14 does not
apply to such cases.\494\
Article 16--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 a third state. A
person in transit may be detained in custody during the transit
period. Requests for transit are to contain a description of
the person whose transit is proposed and a brief statement of
the facts of the case with respect to which transit is sought.
The transit request may be submitted through diplomatic
channels or directly between the United States Department of
Justice and the Trinidad and Tobago Attorney General. The
negotiators agreed that diplomatic channels will be employed as
frequently as possible for requests of this nature. A person
may be detained in custody during the period of transit.
Paragraph 2 provides that no advance authorization is
needed if the person in custody is in transit to one of the
Contracting Parties and is traveling by aircraft and no landing
is scheduled in the territory of the other. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant such a
request. It also permits the transit State to detain a fugitive
until a request for transit is received and executed, so long
as the request is received within 96 hours of the unscheduled
landing.
Article 17--Representation and Expenses
Paragraph 1 provides that the United States represents
Trinidad and Tobago in connection with requests from Trinidad
and Tobago for extradition before the courts in this country,
and the Trinidad and Tobago Attorney General arranges for the
representation of the United States in connection with United
States extradition requests to Trinidad and Tobago.
Paragraph 2 requires that the Requested State bear all
expenses of extradition except those expenses relating to the
ultimate transportation of the person surrendered to the
Requesting State and the translation of documents, which are to
be paid by the Requesting State. The negotiators recognized
that cases may arise in which the Requesting State may wish to
retain private counsel to assist in the presentation of the
extradition request. It is anticipated that in such cases the
fees of private counsel retained by the Requesting State must
be paid by the Requesting State.
Paragraph 3 provides that neither Contracting 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 sought for damages, reimbursement of
legal fees, or other expenses occasioned by the execution of
the extradition request.
Article 18--Consultation
This article provides that the United States and Trinidad
and Tobago Departments of Justice may consult with each other
with regard to an individual extradition case or extradition
procedures in general. A similar provision is found in other
recent United States extradition treaties.\495\
Article 19--Application
This Treaty, like most United States extradition treaties
negotiated in the past two decades, is expressly made
retroactive and accordingly covers offenses that occurred
before as well as after the Treaty enters into force.
Article 20--Ratification and Entry Into Force
This article provides for the entry into force of the
treaty when the parties have notified each other through an
exchange of diplomatic notes that the requirements for entry
into force under their respective laws have been completed. The
instruments of ratification are to be exchanged at Washington
D.C.
Paragraph 3 provides that the 1931 Treaty will cease to
have any effect upon the entry into force of the Treaty, but
extradition requests pending when the Treaty enters into force
will nevertheless be processed to conclusion under the 1972
Treaty. Nonetheless, Article 15 (waiver of extradition) of this
Treaty will apply in such proceedings, and Article 14 (rule of
speciality) also applies to persons found extraditable under
the prior Treaty.
Article 21--Termination
This article contains standard treaty language describing
the procedure for termination of the Treaty by either
Contracting Party. Termination shall become effective six
months after notice of termination is received.
Technical Analysis of the Extradition Treaty Between the United States
of America and Saint Vincent and the Grenadines Signed August 15, 1996
On August 15, 1996, the United States signed a treaty on
extradition with Saint Vincent and the Grenadines (hereinafter
``the Treaty''), which is intended to replace the outdated
treaty currently in force between the two countries\496\ with a
modern agreement on the extradition of fugitives. The new
extradition treaty is one of twelve treaties that the United
States negotiated under the auspices of the Organization of
Eastern Caribbean States to modernize our law enforcement
relations in the Eastern Caribbean. It represents a major step
forward in the United States' efforts to strengthen cooperation
with countries in this region in combating organized crime,
transnational terrorism, and international drug trafficking.
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 for the United States.
Saint Vincent and the Grenadines has its own internal
legislation on extradition,\497\ which it will apply to
requests under the Treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
The first article of the Treaty, like the first article in
every recent United States extradition treaty, formally
obligates each Party to extradite to the other persons sought
for prosecution or convicted of an extraditable offense,
subject to the provisions of the remainder of the Treaty. The
article refers to charges ``in'' the Requesting State rather
than ``of'' the Requesting State, since the obligation to
extradite, in cases arising from the United States, would
include state and local prosecutions as well as federal cases.
It was agreed that the term ``convicted'' includes instances in
which the person has been found guilty but a sentence has not
yet been imposed.\498\ The negotiators intended to make it
clear that the Treaty applies to persons adjudged guilty who
flee prior to sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what offenses are extraditable. This treaty, like most recent
United States extradition treaties, including those with
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden
(Supplementary Convention), and Costa Rica, does not list the
offenses for which extradition may be granted. Instead,
paragraph 1 of the article permits extradition for any offense
punishable under the laws of both countries 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 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
a criminal activity punishable in both countries.
During the negotiations, the United States delegation
received assurances from the Saint Vincent and the Grenadines
delegation that extradition would be possible for such high
priority offenses as drug trafficking (including operating a
continuing criminal enterprise, in violation of Title 21,
United States Code, Section 848); offenses under the
racketeering statutes (Title 18, United States Code, Section
1961-1968), provided that the predicate offense is an
extraditable offense; money laundering; terrorism; tax evasion
and tax fraud; crimes against environmental protection laws;
and antitrust violations punishable in both states by more than
one year of imprisonment.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting or conspiring to commit, aiding or abetting,
counseling or procuring the commission of, or otherwise being
an accessory before or after the fact to, an extraditable
offense. 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. Saint Vincent and the
Grenadines has no general conspiracy statute like Title 18,
United States Code, Section 371. Therefore, paragraph 2 creates
an exception to the ``dual criminality'' rule of paragraph 1 by
making conspiracy an extraditable crime if the offense which
was the object of the conspiracy is an extraditable offense.
Paragraph 3 reflects the intention of both countries to
interpret the principles of this article broadly. 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 the 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 be disregarded in
applying the dual criminality principle. For example, Saint
Vincent and the Grenadines authorities must treat United States
mail fraud charges (Title 18, United States Code, Section 1341)
in the same manner as fraud charges under state laws, and view
the federal crime of interstate transportation of stolen
property (Title 18, United States Code, Section 2314) 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 country. A similar provision is contained in
all recent United States extradition treaties.
Paragraph 4 deals with the fact that many federal crimes
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes jurisdiction in our courts to
prosecute 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.\499\ In
Saint Vincent and the Grenadines, however, the Government's
ability to prosecute extraterritorial offenses is much more
limited. Therefore, Article 2(4) reflects Saint Vincent and the
Grenadines's agreement to recognize United States jurisdiction
to prosecute offenses committed outside of the United States if
Saint Vincent and the Grenadines's law would permit it to
prosecute similar offenses committed outside of it in
corresponding circumstances. If the Requested State's laws do
not so provide, the final sentence of the paragraph states that
extradition may be granted, but the executive authority of the
Requested State has the discretion to deny the request.
Paragraph 5 states 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
have been met except for the requirement that the offense be
punishable by more than one year of imprisonment. For example,
if Saint Vincent and the Grenadines 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 that have been
charged, as long as those misdemeanors would also be recognized
as criminal offenses in Saint Vincent and the Grenadines. 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 extraditable 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 countries such as
Australia, Ireland, Italy, and Costa Rica.
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served. This
Treaty, like most U.S. extradition treaties in the past two
decades, contains no such requirement.\500\ Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Nationality
Some countries refuse to extradite their own nationals to
other countries for trial or punishment, or are prohibited from
doing so by their statutes or constitution. The United States
does not deny extradition on the basis of the offender's
citizenship,\501\ and the Saint Vincent and the Grenadines'
extradition law expressly forbids denial of extradition on the
ground of nationality.\502\ Therefore, Article 3 of the Treaty
provides that extradition is not to be refused based on the
nationality of the person sought.
Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in United
States extradition treaties.\503\
Paragraph 2 describes three categories of offenses which
shall not be considered to be political offenses.
First, the political offense exception does not apply where
there is a murder or other willful crime against the person of
a Head of State of the Contracting States, or a member of the
Head of State's family.
Second, the political offense exception does not apply to
offenses which are included in a multilateral treaty,
convention, or international agreement that requires the
parties to either extradite the person sought or submit the
matter for prosecution, such as the United Nations Convention
Against the Illicit Traffic in Narcotic Drugs and Psychotropic
Substances.\504\
Third, the political offense exception does not apply to
conspiring or attempting to commit, or to aiding and abetting
the commission or attempted commission of the foregoing
offenses.
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State finds that
the request was politically motivated.\505\ This is consistent
with the long-standing law and practice of the United States,
under which the Secretary of State alone has the discretion to
determine whether an extradition request is based on improper
political motivation.\506\
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\507\
Article 5--Prior Prosecution
This article will permit extradition in situations in which
the fugitive is charged in each country with different offenses
arising out of the same basic transaction.
The first paragraph prohibits extradition if the offender
has been convicted or acquitted in the Requested State for the
offense for which extradition is requested, and is similar to
language present in many United States extradition
treaties.\508\ The parties agreed that this provision applies
only if the offender is convicted or acquitted in the Requested
State of exactly the same crime he is charged with in the
Requesting State. It would not be enough that the same facts
were involved. Thus, if an offender is accused in one State of
illegally smuggling narcotics into the country, and is charged
in the other State of unlawfully exporting the same shipment of
drugs out of that State, an acquittal or conviction in one
state would not insulate the person from extradition to the
other, since different crimes are involved.
Paragraph 2 makes it clear that neither State can refuse to
extradite an offender 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, could result
from failure to obtain sufficient evidence or witnesses
available for trial, whereas the Requesting State might not
suffer from the same impediments. This provision should enhance
the ability to extradite to the jurisdiction which has the
better chance of a successful prosecution.
Article 6--Extradition Procedures and Required Documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is generally
similar to corresponding articles in the United States' most
recent extradition treaties.
The first paragraph requires that each formal request for
extradition be submitted through the diplomatic channel. A
formal extradition request may be preceded by a request for
provisional arrest under Article 9, and provisional arrest
requests need not be initiated through diplomatic channels if
the requirements of Article 9 are met.
Paragraph 2 outlines the information that must accompany
every request for extradition under the Treaty. Most of the
items listed in this paragraph enable the Requested State to
determine quickly whether extradition is appropriate under the
Treaty. For example, Article 6(2)(c)(i) calls for ``information
as to the provisions of the law describing the essential
elements of the offense for which extradition is requested,''
enabling the requested state to determine easily whether the
request satisfies the requirement for dual criminality under
Article 2. Some of the items listed in paragraph 2, however,
are required strictly for informational purposes. Thus, Article
6(2)(c)(iii) calls for ``information as to the provisions of
law describing any time limit on the prosecution,'' even though
Article 8 of the Treaty expressly states that extradition may
not be denied due to lapse of time for prosecution. The United
States and Saint Vincent and the Grenadines delegations agreed
that Article 6(2)(c)(iii) should require this information so
that the Requested State would be fully informed about the
charges in the Requesting State.
Paragraph 3 describes the additional information required
when the person is sought for trial in the Requesting State.
Paragraph 3(c) requires that if the fugitive is a person who
has not yet been convicted of the crime for which extradition
is requested, the Requesting State must provide ``such
information as would provide a reasonable basis to believe that
the person sought committed the offense for which extradition
is requested.'' This provision will alleviate one of the major
practical problems with extradition from Saint Vincent and the
Grenadines. The Treaty currently in force permits extradition
only if ``. . . the evidence be found sufficient, according to
the law of the Requested Party . . . to justify the committal
for trial of the person sought if the offense of which he is
accused had been committed in the territory of the requested
Party . . .''\509\ Saint Vincent and the Grenadines' courts
have interpreted this clause to require that a prima facie case
against the defendant be shown before extradition will be
granted.\510\ By contrast, U.S. law permits extradition if
there is probable cause to believe that an extraditable offense
was committed and the offender committed it.\511\ Saint Vincent
and the Grenadines' agreement to extradite under the new Treaty
based on a ``reasonable basis'' eliminates this imbalance in
the burden of proof for extradition, and should dramatically
improve the United States' ability to extradite from Saint
Vincent and the Grenadines.
Paragraph 4 lists the information required to extradite a
person who has already been convicted 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.\512\
Article 7--Admissibility of Documents
Article 7 governs the authentication procedures for
documents prepared for use in extradition cases.
The article states that when the United States is the
Requesting State, the documents in support of extradition must
be authenticated by an officer of the United States Department
of State and certified by the principal diplomatic or consular
officer of Saint Vincent and the Grenadines resident in the
United States. This is intended to replace the cumbersome and
complicated procedures for authenticating extradition documents
applicable under the current treaty.\513\ When the request is
from Saint Vincent and the Grenadines, the documents must be
certified by the principal diplomatic or consular officer of
the United States resident in Barbados accredited to Saint
Vincent and the Grenadines, in accordance with United States
extradition law.\514\
The third subparagraph of the article permits documents to
be admitted into evidence if they are authenticated in any
other manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition, and the
Requested State is free under subsection (c) to utilize that
information if the information satisfies the ordinary rules of
evidence in that state. This ensures that evidence which is
acceptable under the evidentiary rules of the Requested State
may be used in extradition proceedings even if it is not
otherwise authenticated pursuant to the treaty. This paragraph
also should ensure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing simply because of an
inadvertent error or mission in the authentication process.
Article 8--Lapse of Time
Article 8 states that the decision to deny an extradition
request must be made without regard to provisions of the law
regarding lapse of time in either the requesting or requested
states. \515\ The United States and St. Vincent and the
Grenadines delegations agreed that a claim that the statute of
limitations has expired is best resolved by the courts of the
Requesting State after the fugitive has been extradited.
Article 9--Provisional Arrest
This article describes the process by which a person in one
country may be arrested and detained while the formal
extradition papers are being prepared by the requesting
state.\516\
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
the Attorney General in Saint Vincent and the Grenadines. The
provision also indicates that INTERPOL may be used to transmit
such a request.
Paragraph 2 states the information which the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must be
advised promptly of the outcome of its application and the
reason for any denial.
Paragraph 4 provides that the provisional arrest be
terminated if the Requesting State does not file a fully
documented request for extradition within forty-five days of
the date on which the person was arrested. This period may be
extended for up to an additional fifteen days.\517\ When the
United States is the Requested State, it is sufficient for
purposes of this paragraph if the documents are received by the
Secretary of State or the U.S. Embassy in Bridgetown,
Barbados.\518\
Paragraph 5 makes it clear that in such a case the person
may be taken into custody again and the extradition proceedings
may commence if the formal request is subsequently presented.
Article 10--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
in whole or in part, the Requested State must provide an
explanation of the reasons for the denial. If extradition is
granted, the article provides that the two States shall 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 for the same offense. United States law permits
the person to request release if he has not been surrendered
within two calendar months of having been found
extraditable,\519\ or of the conclusion of any litigation
challenging that finding,\520\ whichever is later. The law in
Saint Vincent and the Grenadines permits the person to apply to
a judge for release if he has not been surrendered within sixty
days of the day on which he could have been surrendered after
conclusion of the litigation or thirty days after the warrant
of surrender was issued.\521\
Article 11--Deferred and Temporary Surrender
Occasionally, a person sought for extradition may already
be facing prosecution or serving a sentence on other charges in
the Requested State. Article 11 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 that may have been
imposed.
Paragraph 1 provides for the temporary surrender of a
person wanted 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
provision will be 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 successful prosecution. Such transfer may
also be advantageous to the person sought in that: (1) it
allows him to resolve the charges sooner; (2) subject to the
laws in each state, it may make it possible for him to serve
any sentence in the Requesting State concurrently with the
sentence in the Requested State; and (3) it permits him to
defend against the charges while favorable evidence is fresh
and more likely to be available to him. Similar provisions are
found in many recent extradition treaties.
Paragraph 2 provides that the executive authority of the
Requested State may postpone the extradition proceedings
against a person who is serving a sentence in the Requested
State until the full execution of the punishment which has been
imposed.\522\ The provision's wording makes it clear that the
Requested State may also postpone the surrender of a person
facing prosecution or serving a sentence in that State, even if
all necessary extradition proceedings have been completed.\523\
Article 12--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties and lists some of the factors which
the executive authority of the Requested State must consider in
determining to which country a person should be surrendered
when reviewing requests from two or more States for the
extradition of the same person. For the United States, the
Secretary of State would make this decision;\524\ for Saint
Vincent and the Grenadines, the decision would be made by the
Governor-General.\525\
Article 13--Seizure and Surrender of Property
This article provides that to the extent permitted by its
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other
evidence--relating to the offense for which extradition is
requested.\526\ The article also provides that these objects
shall be surrendered to the Requesting State upon the granting
of the extradition, or even if extradition cannot be effected
due to the death, disappearance, or escape of the fugitive.
Paragraph 2 states that the Requested State may condition
its surrender of property in such a way as to ensure that the
property is returned as soon as practicable. This paragraph
also permits the Requested State to defer surrender altogether
if the property is needed as evidence in the Requested State.
Paragraph 3 makes the surrender of property expressly
subject to due respect for the rights of third parties to such
property.
Article 14--Rule of Speciality
This article covers the principle known as the rule of
speciality, which is a standard aspect of United States
extradition practice. Designed to ensure that a fugitive
surrendered for one offense is not tried for other crimes, the
rule of speciality prevents a request for extradition from
being used as a subterfuge to obtain custody of a person for
trial or service of sentence on different charges which may not
be extraditable under the Treaty or properly documented at the
time that the request is granted.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, tried, or punished in the Requesting State for (1)
the offense for which extradition was granted, or a differently
denominated offense based on the same facts, provided the
offense is extraditable or is a lesser included offense; (2)
for offenses committed after the extradition; and (3) for other
offenses for which the executive authority of the Requested
State consents.\527\ Article 14(1)(c)(ii) permits the State
which is seeking consent to pursue new charges to detain the
defendant for 90 days while the Requested State makes its
determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third State for a crime committed
prior to his extradition under this Treaty, without the consent
of the State from which extradition was first obtained.\528\
Finally, paragraph 3 removes the restrictions of paragraphs
1 and 2 on detention, trial, or punishment of an extraditee for
additional offenses, or extradition to a third State, (1) if
the extraditee leaves and returns to the Requesting State, or
(2) if the extraditee does not leave the Requesting State
within ten days of being free to do so.
Article 15--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings to expedite their return
to the Requesting State. This article provides that when a
fugitive consents to return to the Requesting State, the person
may be returned to the Requesting State without further
proceedings. The Parties anticipate that in such cases there
would be no need for the formal documents described in Article
6 or further judicial proceedings of any kind.\529\
If a person sought from the United States returns to the
Requesting State before the Secretary of State signs a
surrender warrant, the United States would not view the waiver
of proceedings under this article as an ``extradition.'' United
States practice has long been that the rule of speciality does
not apply when a fugitive waives extradition and voluntarily
returns to the Requested State.\530\
Article 16--Transit
Paragraph 1 gives each State the power to authorize transit
through its territory of persons being surrendered to the other
country by third countries.\531\ Requests for transit are to
contain a description of the person whose transit is proposed
and a brief statement of the facts of the case with respect to
which he is being surrendered to the Requesting State. The
paragraph permits the request to be transmitted either through
the diplomatic channel, or directly between the United States
Department of Justice and the Attorney General in Saint Vincent
and the Grenadines, or via INTERPOL channels. The negotiators
agreed that the diplomatic channels will be employed as much as
possible for requests of this nature. A person may be detained
in custody during the period of transit.
Paragraph 2 provides that no advance authorization is
needed if the person in custody is in transit to one of the
Parties and is traveling by aircraft and no landing is
scheduled in the territory of the other Party. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant such a
request. It also permits the transit State to detain a fugitive
until a request for transit is received and executed, so long
as the request is received within 96 hours of the unscheduled
landing.
Saint Vincent and the Grenadines does not appear to have
specific legislation on this matter, and the Saint Vincent and
the Grenadines delegation stated that its Government would seek
implementing legislation for this article in due course.
Article 17--Representation and Expenses
The first paragraph of this article provides that the
United States will represent Saint Vincent and the Grenadines
in connection with a request from Saint Vincent and the
Grenadines for extradition before the courts in this country,
and the Saint Vincent and the Grenadines Attorney General will
arrange for the representation of the United States in
connection with United States extradition requests to Saint
Vincent and the Grenadines.
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and the translation of documents, which expenses are to be paid
by the Requesting State. The negotiators agreed that in some
cases the Requested State might wish to retain private counsel
to assist it in the presentation of the extradition request.
The Attorney General of St. Vincent and the Grenadines has a
very small staff, and might need to enlist outside counsel to
aid in handling a complex, contested international extradition
proceeding. It is anticipated that in such cases the fees of
private counsel retained by the Requested State would be paid
by the Requested State. The negotiators also recognized that
cases might arise in which the Requesting State would wish to
retain its own private counsel to advise it on extradition
matters or even assist in presenting the case, if the Requested
State agrees. In such cases the fees of private counsel
retained by the Requesting State must be paid by the Requesting
State.
Paragraph 3 provides that neither State shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, or surrender of the fugitive. This includes any
claim by the fugitive for damages, reimbursement, or legal
fees, or other expenses occasioned by the execution of the
extradition request.
Article 18--Consultation
Article 18 of the treaty provides that the United States
Department of Justice and the Attorney General's Chambers in
Saint Vincent and the Grenadines may consult with each other
with regard to an individual extradition case or on extradition
procedures in general. A similar provision is found in other
recent U.S. extradition treaties.\532\
The article also states that consultations shall include
issues involving training and technical assistance. At the
request of St. Vincent and the Grenadines, the United States
delegation promised to recommend training and technical
assistance to better educate and equip prosecutors and legal
officials in St. Vincent and the Grenadines to implement this
treaty.
During the negotiations, the St. Vincent and the Grenadines
delegation expressed concern that the United States might
invoke the Treaty much more often than St. Vincent and the
Grenadines, resulting in an imbalance in the financial
obligations occasioned by extradition proceedings. While no
specific Treaty language was adopted, the United States agreed
that consultations between the Parties under Article 18 could
address extraordinary expenses arising from the execution of
individual extradition requests or requests in general.
Article 19--Application
This Treaty, like most other United States extradition
treaties negotiated in the past two decades, is expressly made
retroactive, and accordingly covers offenses that occurred
before the Treaty entered into force, provided that they were
offenses under the laws of both States at the time that they
were committed.
Article 20--Ratification and Entry Into Force
This article contains standard treaty language providing
for the exchange of instruments of ratification at Washington
D.C. The Treaty is to enter into force immediately upon the
exchange.
Paragraph 3 provides that the 1972 Treaty will cease to
have any effect upon the entry into force of the Treaty, but
extradition requests pending when the Treaty enters into force
will nevertheless be processed to conclusion under the 1972
Treaty. Nonetheless, Article 15 (waiver of extradition) of this
Treaty will apply in such proceedings, and Article 14 (rule of
speciality) also applies to persons found extraditable under
the prior Treaty.
Article 21--Termination
This Article contains standard treaty language describing
the procedure for termination of the Treaty by either State.
Termination shall become effective six months after notice of
termination is received.
Technical Analysis Of The Treaty On Extradition Between the United
States of America and Zimbabwe Signed July 25, 1997
On July 25, 1997, the United States signed a treaty on
extradition with the Republic of Zimbabwe (hereinafter ``the
Treaty''). In recent years, the United States has signed
similar treaties with many other countries, as part of a highly
successful effort to modernize our law enforcement relations.
The new extradition treaty will be the first treaty negotiated
between the United States and Zimbabwe since Zimbabwe became an
independent nation,\533\ and it is the first modern extradition
treaty that the United States has negotiated with a sub-Saharan
African country in over fifty years. It constitutes a major
step forward in the United States' efforts to win the
cooperation of countries in the region in combating organized
crime, terrorism, and drug trafficking.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
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 for the United States.
Zimbabwe has its own internal legislation on extradition,\534\
which will apply to United States' requests under the treaty.
The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
The first article of the Treaty, like the first article in
every recent United States extradition treaty, formally
obligates each Party to extradite to the other persons sought
for prosecution or convicted of an extraditable offense,
subject to the provisions of the remainder of the Treaty. The
article refers to charges ``in'' the Requesting State rather
than ``of'' the Requesting State, since the obligation to
extradite, in cases arising from the United States, would
include state and local prosecutions as well as federal cases.
It was agreed that the term ``convicted'' includes instances in
which the person has been found guilty but a sentence has not
yet been imposed.\535\ The negotiators intended to make it
clear that the Treaty applies to persons adjudged guilty who
flee prior to sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what offenses are extraditable. This Treaty, like most recent
United States extradition treaties, including those with
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden
(Supplementary Convention), and Costa Rica, does not list the
offenses for which extradition may be granted. Instead,
paragraph 1 of the article permits extradition for any offense
punishable under the laws of both countries 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 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
a criminal activity punishable in both countries.
Zimbabwe does not have a written criminal code, and almost
all crimes there are defined by common law. This creates
difficulty in identifying and defining offenses for dual
criminality purposes. During the negotiations, the United
States delegation received assurances from the Zimbabwe
delegation that most U.S. offenses would be extraditable,
including drug trafficking, including operating a continuing
criminal enterprise (Title 21, United States Code, Section
848), and that offenses under the racketeering statutes (Title
18, United States Code, Section 1961-1968) would be
extraditable if the predicate offense would be an extraditable
offense. Zimbabwe also stated that extradition would be
possible for such high priority offenses as terrorism, money
laundering, tax fraud or tax evasion, and crimes against
environmental protection laws if punishable in both states by
one year of imprisonment or more.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting or conspiring to commit, aiding or abetting,
counseling or procuring the commission of, or being an
accessory before or after the fact to any extraditable offense.
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. Therefore, paragraph 2
creates an exception to the ``dual criminality'' rule of
paragraph 1 by making conspiracy an extraditable crime if the
offense which was the object of the conspiracy is an
extraditable offense.
Paragraph 3 reflects the intention of both countries to
interpret the principles of this article broadly. 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 the 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 be disregarded in
applying the dual criminality principle. For example, Zimbabwe
authorities must treat United States mail fraud charges (Title
18, United States Code, Section 1341) in the same manner as
fraud charges under state laws, and view the federal crime of
interstate transportation of stolen property (Title 18, United
States Code, Section 2314) 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 country. A similar
provision is contained in all recent United States extradition
treaties.
Article 2(3)(c) was included in the treaty because Zimbabwe
authorities take tax, customs, and currency reporting offenses
very seriously, and are firmly committed to extradition for
such crimes.\536\ The Government of Zimbabwe is particularly
concerned about its currency control statutes. Zimbabwe has a
small currency base, and prescribes significant criminal
penalties for the unlawful movement of currency in and out of
the country.\537\ U.S. law does not regulate the amount of
money that can be taken into or out of the country, although
there are strict requirements for reporting such transactions
if they involve more than $10,000.\538\ Thus, there may be
instances in which conduct that is a serious economic crime in
Zimbabwe might not be an offense in the U.S., and extradition
would not be possible. Article 2(3)(c) reflects the firm
commitment of the U.S. to construe the treaty broadly and to
effect extradition whenever possible.
Paragraph 4 deals with the fact that many federal crimes
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes jurisdiction in our courts to
prosecute 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.\539\ In
Zimbabwe, however, the Government's ability to prosecute
extraterritorial offenses is much more limited. Therefore,
Article 2(4) reflects Zimbabwe's agreement to recognize United
States jurisdiction to prosecute offenses committed outside of
the United States if Zimbabwe law would permit it to prosecute
similar offenses committed outside of Zimbabwe in corresponding
circumstances. If the Requested State's laws do not so provide,
the final sentence of the paragraph states that the executive
authority of the Requested State has the discretion to grant
the request.
Paragraph 5 states 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
have been met except for the requirement that the offense be
punishable by more than one year of imprisonment. For example,
if Zimbabwe 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 that have been charged, as long as those
misdemeanors would also be recognized as criminal offenses in
Zimbabwe. 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 extraditable 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
countries such as Australia, Ireland, Italy, and Costa Rica.
Some U.S. extradition treaties provide that persons who
have been convicted and sentenced for an extraditable offense
may be extradited only if at least a certain specified portion
of the sentence (often six months) remains to be served.\540\
This Treaty, like most U.S. extradition treaties in the past
two decades, contains no such requirement. Thus, any concerns
about whether a particular case justifies the time and expense
of invoking the machinery of international extradition should
be resolved between the Parties through the exercise of wisdom
and restraint rather than through arbitrary limits imposed in
the Treaty itself.
Article 3--Nationality
Some countries refuse to extradite their own nationals to
other countries for trial or punishment, or are prohibited from
doing so by their statutes or constitution. The United States
does not deny extradition on the basis of the offender's
citizenship,\541\ and neither does Zimbabwe.\542\ Article 3 of
the Treaty states that extradition is not to be refused based
on the nationality of the person sought.
Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in United
States extradition treaties.\543\
Paragraph 2 describes three categories of offenses which
shall not be considered to be political offenses.
First, the political offense exception does not apply where
there is a murder or other willful crime against the person of
a Head of State of the Contracting States, or a member of the
Head of State's family.
Second, the political offense exception does not apply to
offenses that are included in a multilateral treaty,
convention, or international agreement that requires the
parties to either extradite the person sought or submit the
matter for prosecution, such as the United Nations Convention
Against the Illicit Traffic in Narcotic Drugs and Psychotropic
Substances.\544\
Third, the political offense exception does not apply to
conspiring or attempting to commit, or to aiding and abetting
the commission or attempted commission of the foregoing
offenses.
Article 4(3) provides that extradition shall not be granted
if the executive authority of the Requested State finds that
the request was politically motivated.\545\ This is consistent
with the long-standing law and practice of the United States,
under which the Secretary of State alone has the discretion to
determine whether an extradition request is based on improper
political motivation.\546\
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\547\
Article 5--Prior Prosecution
This article will permit extradition in situations in which
the fugitive is charged in each country with different offenses
arising out of the same basic transaction.
The first paragraph prohibits extradition if the offender
has been convicted or acquitted in the Requested State for the
offense for which extradition is requested, and is similar to
language present in many United States extradition
treaties.\548\ The parties agreed that this provision applies
only if the offender is convicted or acquitted in the Requested
State of exactly the same crime he is charged with in the
Requesting State. It would not be enough that the same facts
were involved. Thus, if an offender is accused in one State of
illegally smuggling narcotics into the country, and is charged
in the other State of unlawfully exporting the same shipment of
drugs out of that State, an acquittal or conviction in one
state would not insulate the person from extradition to the
other, since different crimes are involved.
Paragraph 2 makes it clear that neither State can refuse to
extradite an offender 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, could result
from failure to obtain sufficient evidence or witnesses
available for trial, whereas the Requesting State might not
suffer from the same impediments. Both delegations agreed that
if the dismissal of charges takes place after the person has
been placed in ``jeopardy'' under the laws of the Requesting
State, the case would be governed by Paragraph 1.
Article 6--Extradition Procedures and Required Documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is generally
similar to corresponding articles in the United States' most
recent extradition treaties.
The first paragraph of the article 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 9, and provisional arrest requests
need not be initiated through diplomatic channels if the
requirements of Article 9 are met.
Article 6(2) outlines the information which must accompany
every request for extradition under the Treaty. Most of the
items enable the Requested State to determine quickly whether
extradition is appropriate under the Treaty. For example,
Article 6(2)(c) calls for ``a statement of the provisions of
the law describing the essential elements of the offense for
which extradition is requested,'' enabling the requested state
to determine easily whether the request satisfies the
requirement for dual criminality under Article 2.
Article 6(3) describes the additional information needed
when the person is sought for trial in the Requesting State.
Article 6(3)(c) requires that if the fugitive is a person who
has not yet been convicted of the crime for which extradition
is requested, the Requesting State must provide ``such
information as would justify the committal for trial of the
person if the offense had been committed in the Requested State
or such information as would justify the committal for
extradition of the person in accordance with the laws of the
Requested State.''\549\ Under United States law, persons are
committed to custody for extradition upon the same showing
required for committal for trial: sufficient evidence to
establish probable cause to believe that the crime for which
extradition was requested has been committed and that the
person sought committed it. Therefore, when Zimbabwe is the
Requesting State, this paragraph requires the submission of
submission of evidence to establish probable cause. However,
Zimbabwe's delegation stated that Zimbabwe's current
extradition law draws a distinction between the extradition of
a Zimbabwe national and the extradition of a non-national. The
law requires that a request for the extradition of a Zimbabwe
national be supported by a prima facie case of guilt, but does
not require such a showing when the request is for a non-
national.\550\ The United States delegation was assured by the
Zimbabwe delegation that when the United States requests
extradition of a non-Zimbabwean national, Article 6(3)(c) of
the Treaty will be satisfied if the request is supported by
probable cause, which can be shown by hearsay evidence.
However, if the request is for a Zimbabwe national, the United
States would have to make out a prima facie case of such
evidence as would justify committal for trial in Zimbabwe. Of
course, if Zimbabwe's law changes to permit extradition on
probable cause for both nationals and non-nationals of
Zimbabwe, the provision is drafted flexibly so that the United
States would be able to take advantage of that change.
Article 6(4) lists the information needed to extradite a
person who has already been convicted 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.\551\
Article 7--Admissibility of Documents
This article states that evidence in support of an
extradition request shall be authenticated in one of three
methods.
Subparagraph (a) of this Article states that United States
extradition requests to Zimbabwe shall be authenticated by a
judge, magistrate, or other competent official in the United
States and stamped with the official seal of an authority
comparable to the Minister of Justice or other competent
authority. The delegations agreed that these provisions,
inspired by Section 32 of Zimbabwe Extradition Act 1982, would
be satisfied if the documents are authenticated by the
``competent officials'' in the Department of Justice's Office
of International Affairs, and bear the official seal of the
Department of Justice. The negotiators also agreed that
affidavits from witnesses in support of a United States
extradition request would be admissible if the oath were
administered by a notary public in the United States.
Subparagraph (b) describes the procedure for authenticating
Zimbabwe requests to the United States. When the request is
from Zimbabwe, the documents must be certified by the principal
diplomatic or consular officer of the United States resident in
Zimbabwe, in accordance with United States extradition
law.\552\
The third subparagraph of the article permits documents to
be admitted into evidence if they are authenticated in any
other manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition, and the
Requested State is free under subsection (c) to utilize that
information if the information satisfies the ordinary rules of
evidence in that state. This ensures that evidence which is
acceptable under the evidentiary rules of the Requested State
may be used in extradition proceedings even if it is not
otherwise authenticated pursuant to the treaty. This paragraph
also should ensure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested country, is not
excluded at the extradition hearing simply because of an
inadvertent error or omission in the authentication process.
Article 8--Translation
We understand that there are three languages commonly used
in the Republic of Zimbabwe: English, Shona, and Ndebele.
Article 8 of the Treaty requires that all extradition documents
be translated into English.
Article 9--Provisional Arrest
This article describes the process by which a person in one
country may be arrested and detained while the formal
extradition papers are being prepared by the Requesting
State.\553\
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
Ministry of Home Affairs in Zimbabwe. The provision also
indicates that INTERPOL may be used to transmit such a request.
Paragraph 2 states the information which the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must be
advised promptly of the outcome of its application and the
reason for any denial.
Paragraph 4 provides that the fugitive may be released from
detention if the Requesting State does not file a fully
documented request for extradition with the executive authority
of the Requested State within sixty days of the date on which
the person was arrested under to the Treaty. When the United
States is the Requested State, the ``executive authority''
would include the Secretary of State or the U.S. Embassy in
Harare, Zimbabwe.\554\
Although the person sought may be released from custody if
the documents are not received within the sixty-day period or
any extension thereof, the extradition proceedings against the
fugitive need not be dismissed. Article 9(5) makes it clear
that the person may be taken into custody again and the
extradition proceedings may commence if the formal request is
presented subsequently.
One difficulty discussed by the negotiators is that under
Zimbabwe law, the person provisionally arrested for extradition
may seek release from custody after 28 days.\555\ The
delegations agreed that 28 days was too short a period for
provisional arrest given factors such as the distance between
the two countries, and that a 60-day period is appropriate and
reasonable. In order to reconcile the terms of the treaty with
the current provisions of Zimbabwe law, the delegations reached
the understanding that when the United States is the requesting
State, the Government of Zimbabwe will request that its court
order the person arrested to remain in custody for the full 60
days, but it is recognized that in unusual cases the courts may
consider setting bail for the person arrested after 28 days
have passed and the documents have not been received. If the
court is inclined to take this step, the Ministry of Justice
will urge the court to set a high enough bail that the fugitive
will remain in custody or at least be unlikely to flee the
jurisdiction. It is also understood that if the United States
believes that this presents an unacceptable risk of the
fugitive's flight, the United States is free to withdraw its
first provisional arrest request and submit a new one, and the
28 day time period will commence again. Where Zimbabwe is the
requesting State, the fugitive should be held in custody for 60
days pending receipt of the documents, and there is no special
understanding regarding release on bail.
Article 10--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
in whole or in part, the Requested State must provide an
explanation of the reasons for the denial. If extradition is
granted, the article requires that the two States 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 for the same offense. United States law permits a
person to request release if he has not been surrendered within
two calendar months of having been found extraditable,\556\ or
of the conclusion of all litigation challenging that
finding,\557\ whichever comes later. In Zimbabwe, that period
is decided by the Minister of Home Affairs, in his
discretion.\558\
Article 11--Deferred and Temporary Surrender
Occasionally, a person sought for extradition may already
be facing prosecution or serving a sentence already on other
charges in the Requested State. Article 11 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 that may have been
imposed.
Article 11(1) provides for the temporary surrender of a
person wanted 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
provision will be 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 successful prosecution. Such transfer may
also be advantageous to the person sought in that: (1) it
allows him to resolve the charges sooner; (2) subject to the
laws in each state, it may make it possible for him to serve
any sentence in the Requesting State concurrently with the
sentence in the Requested State; and (3) it permits him to
defend against the charges while favorable evidence is fresh
and more likely to be available to him. Similar provisions are
found in many recent extradition treaties.
Article 11(2) provides that the executive authority of the
Requested State may postpone the extradition proceedings
against a person who is serving a sentence in the Requested
State until the full execution of the punishment that has been
imposed.\559\ The provision's wording makes it clear that the
Requested State may also postpone the surrender of a person
facing prosecution or serving a sentence even if all necessary
extradition proceedings have been completed.\560\
Article 12--Requests for Extradition Made by More Than One State
This article reflects the practice of many recent United
States extradition treaties and lists factors which the
Requested State must consider in determining to which country a
person should be surrendered when reviewing requests from two
or more States for the extradition of the same person. For the
United States, the Secretary of State would make this
decision;\561\ for Zimbabwe, the decision would be made by the
Minister of Home Affairs.\562\
Article 13--Seizure and Surrender of Property
This article provides that to the extent permitted by its
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other
evidence--relating to the offense for which extradition is
requested.\563\ The article also provides that these objects
shall be surrendered to the Requesting State upon the granting
of the extradition, or even if extradition cannot be effected
due to the death, disappearance, or escape of the fugitive.
Paragraph 2 states that the Requested State may condition
its surrender of property in such a way as to ensure that the
rights of third parties are protected and that the property is
returned as soon as practicable. The paragraph also permits the
Requested State to defer surrender altogether if the property
is needed as evidence in the Requested State. During the
negotiations the delegation of Zimbabwe noted that the transfer
of property under this Article would be subject to the
Requested State's laws and regulations on asset forfeiture and
currency control.
Paragraph 3 makes the obligation to surrender property
under this provision expressly subject to due respect for the
rights of third parties to such property.
Article 14--Rule of Speciality
This article covers the principle known as the rule of
speciality, which is a standard aspect of United States
extradition practice. Designed to ensure that a fugitive
surrendered for one offense is not tried for other crimes, the
rule of speciality prevents a request for extradition from
being used as a subterfuge to obtain custody of a person for
trial or service of sentence on different charges which may not
be extraditable under the treaty or properly documented at the
time that the request is granted.
This article codifies the current formulation of the rule
by providing that a person extradited under the Treaty may only
be detained, tried, or punished in the Requesting State for (1)
the offense for which extradition was granted, or a differently
denominated offense based on the same facts, provided the
offense is extraditable or is a lesser included offense; (2)
for offenses committed after the extradition; and (3) for other
offenses for which the executive authority of the Requested
State consents.\564\ Article 14(1)(c)(ii) permits the State
which is seeking consent to pursue new charges to detain the
defendant for 90 days or more while the Requested State makes
its determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third State for a crime committed
prior to his extradition under this Treaty, without the consent
of the State from which extradition was first obtained.\565\
Finally, Paragraph 3 removes the restrictions of paragraphs
1 and 2 on the detention, trial, or punishment of an extraditee
for additional offenses, or extradition a third State, (1) if
the extraditee leaves and returns voluntarily to the Requesting
State, or (2) if the extraditee does not leave the Requesting
State within fifteen days of being free to do so.
Article 15--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings to expedite their return
to the Requesting State. This article provides that when a
fugitive consents to return to the Requesting State the person
may be returned to the Requesting State without further
proceedings. The Parties anticipate that in such cases there
would be no need for the formal documents described in Article
6 or further judicial proceedings of any kind.
If a person sought from the United States returns to the
Requesting State before the Secretary of State signs a
surrender warrant, the United States would not view the return
pursuant to a waiver of proceedings under this article as an
``extradition.'' United States practice has long been that the
rule of speciality does not apply when a fugitive waives
extradition and voluntarily returns to the Requested State. The
negotiators agreed that the rule of speciality in Article 14
will not apply in such cases.
Article 16--Transit
Article 16(1) gives each State the power to authorize
transit through its territory of persons being surrendered to
the other country by third countries.\566\ Requests for transit
are to contain a description of the person whose transit is
proposed and a brief statement of the facts of the case with
respect to which he is being surrendered to the Requesting
State. The paragraph permits the request to be transmitted
either through the diplomatic channel, or directly between the
United States Department of Justice and the Ministry of Home
Affairs in Zimbabwe, or via INTERPOL channels. The negotiators
agreed that the diplomatic channels will be employed as much as
possible for requests of this nature. A person may be detained
in custody during the period of transit.
Article 16(2) provides that no advance authorization is
needed if the person in custody is in transit to one of the
Parties and is traveling by aircraft and no landing is
scheduled in the territory of the other Party. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant such a
request. It also provides for the transit State to detain a
fugitive until a request for transit is received and executed,
so long as the request is received within 96 hours of the
unscheduled landing.
Article 17--Representation and Expenses
The first paragraph of this article provides that the
United States will represent Zimbabwe in connection with a
request from Zimbabwe for extradition before the courts in this
country, and that Zimbabwe will arrange for the representation
of the United States in connection with United States
extradition requests to Zimbabwe.
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and the translation of documents, which expenses are to be paid
by the Requesting State.\567\ The negotiators recognized that
cases may arise in which it may be necessary for the Requesting
State to retain private counsel to assist in the presentation
of the extradition request. It is anticipated that in such
cases the fees of private counsel retained by the Requesting
State must be paid by the Requesting State.
Paragraph 3 provides that neither State shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, or surrender of the fugitive. This includes any
claim by the fugitive for damages, reimbursement, or legal
fees, or other expenses occasioned by the execution of the
extradition request.
Article 18--Consultation
Article 18 of the treaty provides that the United States
Department of Justice and the Zimbabwe Ministry of Home Affairs
may consult with each other, directly or through INTERPOL, with
regard to an individual extradition case or on extradition
procedures in general. Similar provision is found in other
recent U.S. extradition treaties.\568\
Article 19--Application
This Treaty, like most United States extradition treaties
negotiated in the past two decades, is expressly made
retroactive to cover offenses that occurred before the Treaty
entered into force, provided that they were offenses under the
laws of both States at the time that they were committed.
Article 20--Ratification and Entry Into Force
Article 20 contains standard treaty language providing for
the exchange of instruments of ratification and that the Treaty
will enter into force immediately upon the exchange.
Article 21--Termination
This Article contains standard treaty language describing
the procedure for termination of the Treaty by either State
upon six months' notice.
VIII. Texts of Resolutions of Ratification
Treaty with Luxembourg:
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 Grand
Duchy of Luxembourg, signed at Washington on October 1, 1996
(Treaty Doc. 105-10), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 17 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Luxembourg by
the United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with France:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Extradition Treaty between the United
States of America and France, which includes an Agreed Minute,
signed at Paris on April 23, 1996 (Treaty Doc. 105-13), subject
to the understanding of subsection (a), the declaration of
subsection (b), and the proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Articles 19 and 20 concerning
the Rule of Specialty would preclude the resurrender of
any person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to France by the
United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Poland:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Extradition Treaty Between the United
States of America and the Republic of Poland, signed at
Washington on July 10, 1996 (Treaty Doc. 105-14), subject to
the understanding of subsection (a), the declaration of
subsection (b), and the proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 19 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Poland by the
United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Protocol with Spain:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Third Supplementary Extradition Treaty
Between the United States of America and the Kingdom of Spain,
signed at Madrid on March 12, 1996 (Treaty Doc. 105-15),
subject to the declaration of subsection (a), and the proviso
of subsection (b).
(a) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(b) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Cyprus:
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 Cyprus, signed at Washington on June 17, 1996
(Treaty Doc. 105-16), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 16 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Cyprus by the
United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Argentina:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Extradition Treaty Between the United
States of America and the Argentine Republic, signed at Buenos
Aires on June 10, 1997 (Treaty Doc. 105-18), subject to the
understanding of subsection (a), the declaration of subsection
(b), and the proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 16 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Argentina by
the United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Antigua and Barbuda:
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 Antigua
and Barbuda, signed at St. John's on June 3, 1996 (Treaty Doc.
105-19), subject to the understanding of subsection (a), the
declaration of subsection (b), and the proviso of subsection
(c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 14 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Antigua and
Barbuda by the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the treaty establishing that Court has
entered into force for the United States by and with
the advice and consent of the Senate, as required by
Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Dominica:
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 Dominica,
signed at Roseau on October 10, 1996 (Treaty Doc. 105-19),
subject to the understanding of subsection (a), the declaration
of subsection (b), and the proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 14 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Dominica by
the United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Grenada:
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 Grenada,
signed at St. George's on May 30, 1996 (Treaty Doc. 105-19),
subject to the understanding of subsection (a), the declaration
of subsection (b), and the proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 14 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited Grenada by the
United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Saint Lucia:
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 Saint
Lucia, signed at Castries on April 18, 1996 (Treaty Doc. 105-
19), subject to the understanding of subsection (a), the
declaration of subsection (b), and the proviso of subsection
(c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 14 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Saint Lucia by
the United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Saint Kitts and Nevis:
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 Saint
Kitts and Nevis, signed at Basseterre on September 18, 1996
(Treaty Doc. 105-19), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 14 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Saint Kitts
and Nevis by the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the treaty establishing that Court has
entered into force for the United States by and with
the advice and consent of the Senate, as required by
Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Saint Vincent and the Grenadines:
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 Saint
Vincent and the Grenadines, signed at Kingstown on August 15,
1996 (Treaty Doc. 105-19), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 14 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Saint Vincent
by the United States to the International Criminal
Court agreed to in Rome, Italy, on July 17, 1998,
unless the treaty establishing that Court has entered
into force for the United States by and with the advice
and consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Barbados:
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 Barbados,
signed at Bridgetown on February 28, 1996 (Treaty Doc. 105-20),
subject to the understanding of subsection (a), the declaration
of subsection (b), and the proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 14 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Barbados by
the United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Trinidad and Tobago:
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 Trinidad
and Tobago, signed at Port of Spain on March 4, 1996 (Treaty
Doc. 105-21), subject to the understanding of subsection (a),
the declaration of subsection (b), and the proviso of
subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 14 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Trinidad and
Tobago by the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the treaty establishing that Court has
entered into force for the United States by and with
the advice and consent of the Senate, as required by
Article II, section 2 of the United States
Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with India:
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 India, signed at Washington on June 25, 1997
(Treaty Doc. 105-30), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 17 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to India by the
United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Zimbabwe:
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 Zimbabwe, signed at Harare on July 25, 1997 (Treaty
Doc. 105-33), subject to the understanding of subsection (a),
the declaration of subsection (b), and the proviso of
subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 14 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Zimbabwe by
the United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATIONS.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Protocol with Mexico:
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Protocol to the Extradition Treaty Between
the United States of America and the United Mexican States of
May 4, 1978, signed at Washington on November 13, 1997 (Treaty
Doc. 105-46), subject to the declaration of subsection (a), and
the proviso of subsection (b).
(a) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(b) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
Treaty with Austria:
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 Austria, signed at Washington on January 8, 1998
(Treaty Doc. 105-50), subject to the understanding of
subsection (a), the declaration of subsection (b), and the
proviso of subsection (c).
(a) UNDERSTANDING.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.--The United States understands that the
protections contained in Article 19 concerning the Rule
of Specialty would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to Austria by the
United States to the International Criminal Court
agreed to in Rome, Italy, on July 17, 1998, unless the
treaty establishing that Court has entered into force
for the United States by and with the advice and
consent of the Senate, as required by Article II,
section 2 of the United States Constitution.
(b) DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) PROVISO.--The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
SUPREMACY OF THE CONSTITUTION.--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.
NOTES
\1\ Extradition between the U.S. and Antigua and Barbuda is
currently governed by the U.S.-U.K. Extradition Treaty (hereinafter
``the 1972 Treaty''), signed June 8, 1972, entered into force January
21, 1977 (28 UST 227, TIAS 8468), which continued in force after
Antigua and Barbuda became an independent nation November 1, 1981.
\2\ Antigua and Barbuda Extradition Act, 1993, of 17th June 1993
(hereinafter ``Extradition Act 1993''). The key sections of the
Extradition Act which are germane to the interpretation and
implementation of the Treaty are discussed in more detail in this
Technical Analysis. The Antiguan delegation stated that in Antigua and
Barbuda, treaties do not take priority over statutes. Antigua and
Barbuda's delegation assured the United States delegation, however,
that the terms of this Treaty would be given full effect, since, under
Section 6(1), Extradition Act 1993, Antigua's Minister of Justice may
embody the terms of this Treaty in an Order published in the Gazette
and direct that Antigua and Barbuda's extradition law apply ``as
between Antigua and Barbuda and [the United States] subject to the
limitations, restrictions, exceptions and qualifications, if any,
contained in the Order.''
\3\ See Stanbrook and Stanbrook, Extradition: The Law and Practice,
25-26 (1979).
\4\ Restatement (Third) of the Foreign Relations Law of the United
States Sec. 402 (1987); Blakesley, United States Jurisdiction over
Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 1109
(1982).
\5\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\6\ See generally Shearer, Extradition in International Law 110-114
(1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our
policy of drawing no distinction between nationals of the United States
and those of other countries in extradition matters is underscored by
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of
State to extradite U.S. citizens pursuant to treaties that permit (but
do not require) surrender of citizens, if other requirements of the
Treaty have been met.
\7\ Section 8(1), Extradition Act 1993, provides that extradition
shall be denied if the crime is an offense ``of a political
character.'' The Antigua and Barbuda delegation assured the United
States that this is identical to the political offense defense. Similar
provisions appear in all recent U.S. extradition treaties.
\8\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\9\ There are similar provisions in many U.S. extradition treaties.
See Article III(3), US-Jamaica Extradition Treaty, signed at Kingston
June 14, 1983, entered into force July 7, 1991; Article 5(4), US-Spain
Extradition Treaty, signed at Madrid May 29, 1970, entered into force
June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article 4, US-
Netherlands Extradition Treaty, signed at The Hague June 24, 1980,
entered into force September 15, 1983 (TIAS 10733); and Article IV(c),
US-Ireland Extradition Treaty, signed at Washington July 13, 1983,
entered into force Dec. 15, 1984 (TIAS 10813).
\10\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert.
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\11\ An example of such a crime is desertion. Matter of Extradition
of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 1988).
\12\ Similar provisions appear in many treaties, including Article
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March
28, 1995, entered into force July 29, 1995.
\13\ Extradition Act 1993, Section 11(7).
\14\ See Extradition Act 1980, Section 17(1).
\15\ 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
Section 476, comment b.
\16\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F. Supp. 976 (D. Vt. 1979).
\17\ See Article VII(5) of the 1972 Treaty.
\18\ This provision is consistent with requirements imposed by U.S.
law. See Title 18, United States Code, Section 3190.
\19\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
\20\ Similar provisions appear in all recent U.S. extradition
treaties. The topic of provisional arrest is dealt with in the
Extradition Act 1993, Section 10(3).
\21\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
\22\ Title 18, United States Code, Section 3188.
\23\ Jimenez v. United States District Court, 84 S. Ct. 14, 11
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713
F. 2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th
Cir. 1978).
\24\ Extradition Act 1993, Section 18.
\25\ Under United States law and practice, the Secretary of State
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D.
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\26\ Cheng Na-Yuet v. Hueston, 734 F. Supp 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\27\ Similar provisions are found in all recent U.S. extradition
treaties.
\28\ In the United States, the Secretary of State has the authority
to grant such consent. See Berenguer v. Vance, 473 F. Supp. 1195, 1199
(D.D.C. 1979).
\29\ Thus, the provision is consistent with the provisions of all
recent U.S. extradition treaties.
\30\ See Extradition Act 1993, Section 16
\31\ A similar provision is in all recent U.S. extradition
treaties.
\32\ See Article 20, U.S.-Jordan Extradition Treaty, supra note 17;
Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels April
27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered
into force September 10, 1997 ; Article 18, U.S.-Philippines
Extradition Treaty, signed at Manila Nov. 13, 1994, entered into force
November 22, 1996; Article 21, U.S.-Hungary Extradition Treaty, signed
at Budapest Dec. 1, 1994, entered into force March 18, 1997.
\33\ Signed January 21, 1972, entered into force September 15, 1972
(23 UST 3501; TIAS 7510).
\34\ Although this provision is intended to enable extradition from
the United States to Argentina of a person who is the subject of an
Argentine warrant of arrest and whose appearance in Argentina is sought
as a necessary step for subjecting such person to criminal prosecution,
it is not intended to enable extradition of a person whose appearance
has been ordered for the sole purpose of giving testimony.
\35\ See Stanbrook and Stanbrook, Extradition: The Law and
Practice, 25-26 (1979).
\36\ See, e.g., U.S. extradition treaties with The Bahamas,
Bolivia, Ireland, Jamaica, Jordan, the Philippines, and Thailand.
\37\ Like the U.S. concept of conspiracy, the crime of illicit
association involves the confederation of persons for a criminal
purpose; however, while a conspiracy under U.S. law may involve as few
as two persons, Argentine law requires at least three persons to form
an illicit association.
\38\ See, e.g., United States extradition treaties with the
Bahamas, Bolivia, Ireland, Jamaica, Jordan, and Thailand. See also
Collins v. Loisel, 259 U.S. 309 (1922) (``the law does not require that
the name by which the crime is described in the two countries shall be
the same; nor that the scope of liability shall be coextensive, or, in
other respects, the same in the two countries. It is enough if the
particular act charged is criminal in both jurisdictions.'')
\39\ Restatement (Third) of the Foreign Relations Law of the United
States Sec. 402 (1987); Blakesley, United States Jurisdiction Over
Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 1109
(1982). Like U.S. law, Argentine law recognizes the effects principle
of jurisdiction. See Article 1, Argentine Penal Code.
\40\ A similar provision is contained in other recent U.S. treaties
(e.g., extradition treaties with Bolivia and Jordan).
\41\ The Argentine delegation insisted that the term ``territory''
be defined with respect to the Requesting State, for they wished to
ensure that ``the Requesting State's territory'', for the purposes of
this Article, would encompass the territorial airspace and territorial
waters of that State. Such a provision exists in the 1972 treaty. In
the new Treaty, the formula agreed upon--``all places subject to [the
Requesting] State's criminal jurisdiction''--was deemed by the
negotiators to capture the intended meaning in a less wordy and
cumbersome fashion than the equivalent provision in the 1972 treaty.
\42\ See, e.g., U.S. extradition treaties with Bolivia and Jordan.
\43\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (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.
\44\ This Article states that ``the extradition and surrender'' of
the person sought shall not be refused on the basis of nationality. As
noted above, under the 1972 treaty, Argentine courts have granted
``extradition'' of Argentine citizens, but, in the absence of an
affirmative obligation to surrender them, has proceeded to allow the
person to request trial in Argentina. The phrase ``extradition and
surrender'' is designed to ensure that the Requested State actually
turns over custody of its citizens to the Requesting State when
extradition has been granted.
\45\ Provisions barring extradition for political offenses are
included in every U.S. extradition treaty. The provision in this
article is typical in that it does not attempt to define what
constitutes a political offense (although paragraph 2 of this article
sets forth certain offenses that are not political offenses). As a
result, the requested country must determine, based solely on its
domestic law, whether a given extradition request should be denied on
this basis. Because the Treaty does not provide otherwise, the
judiciary decides whether the political offense exception will bar
extradition in a particular case. Eain v. Wilkes, 641 F.2d 504, 513
(7th Cir. 1981).
\46\ See, e.g., U.S. extradition treaties with The Bahamas,
Bolivia, Mexico, and the Philippines.
\47\ Done at New York, December 14, 1973; entered into force
February 20, 1977 (28 UST 1975; TIAS 8532; 1035 UNTS 167).
\48\ Done at New York December 17, 1979; entered into force June 3,
1983 (TIAS 11081).
\49\ Done at the Hague December 16, 1970; entered into force
October 14, 1971 (22 UST 1641; TIAS 7192).
\50\Examples of such offenses are desertion and disobedience of
orders. See Matter of Suarez-Mason, 694 F. Supp. 676, 703 (N.D.Cal.
1988).
\51\ See, e.g., U.S. extradition treaties with The Bahamas,
Bolivia, Ireland, Italy, Jamaica, the Netherlands, the Philippines, and
Thailand.
\52\ The express use of the phrase ``convicted or acquitted'' in
this paragraph prevents the Requested State from refusing extradition
on the basis that it has unilaterally immunized the fugitive from
prosecution by pardon or granting of clemency. Moreover, nothing in
this provision enables the Requested State to bar extradition on the
grounds that the person sought has been convicted or acquitted in a
third State.
\53\ See, e.g., U.S. extradition treaties with The Bahamas,
Bolivia, Jordan, and the Philippines.
\54\ The term ``offense'' in this provision means the crime, not
``the act'' for which extradition is requested. A single set of facts
may result in several different offenses being charged in different
jurisdictions, and prosecution for one such offense should not bar
extradition for another. future reinstitution. \55\ This provision
should enhance the ability to extradite criminals to the jurisdiction
which has the better chance of a successful prosecution.
\55\ This provision is intended to make clear that extradition
shall not be precluded by the mere fact that the fugitive is being
proceeded against in the Requested State. If the Requested State is
prosecuting the fugitive for the same offense for which extradition is
requested, the Requested State should, pursuant to Article 13 of this
Treaty, defer its decision on extradition until the proceedings are
over. Then, the Requested State can decide whether to deny extradition
because of conviction or acquittal, or grant extradition if the charges
were resolved in a manner that does not implicate double jeopardy (such
as dismissal without prejudice). Otherwise, a Requested State could
charge the fugitive with the same offense that is the subject of the
extradition request, then deny the extradition request due to a pending
prosecution in the Requested State, and finally dismiss its domestic
case--allowing the fugitive to escape prosecution altogether.
\56\ See, e.g., recent United States extradition treaties with The
Bahamas, Bolivia, Germany, Ireland, Italy, Jamaica, Jordan, and
Thailand.
\57\ See, e.g., extradition treaties with The Bahamas, Bolivia,
Jamaica, Jordan, and Thailand.
\58\ As noted in the analysis of Article 1 above, under Argentine
criminal procedure, a formal indictment may not be filed in Argentina
until the fugitive is brought before an Argentine court. In recognition
of those instances in which Argentina might seek the extradition of a
person for whom an indictment has not yet been filed, the negotiating
delegations agreed to include the phrase, ``if any.''
\59\ Courts considering foreign extradition requests in accordance
with Title 18, United States Code, Section 3184, have long required
probable cause for international extradition. Ex Parte Bryant, 167 U.S.
104, 105 (1897); Restatement (Third) of the Foreign Relations Law of
the United States Sec. 476, comment b (1987).
\60\ Many other U.S. extradition treaties include language
requiring information that would justify the ``committal for trial'' of
the person sought, rather than his or her ``detention''. Under U.S.
jurisprudence, the terms ``committal for trial'' and ``detention'' are
interchangeable in this context, in as much as they both require a
finding of probable cause. The Argentine delegation advised, however,
that their courts could interpret the term ``committal for trial'' to
require a much higher standard of proof, i.e., a prima facie showing of
guilt. Accordingly, the delegations agreed to include ``detention''
rather that ``committal for trial'' to ensure that the courts of both
the United States and Argentina will apply a similar standard of proof
in extradition cases.
\61\ Under U.S. practice, a judgment of conviction is not
ordinarily entered until after a person is sentenced. Accordingly, in
cases where a person has been found guilty but not yet sentenced, this
provision allows the requesting state to provide, in lieu of the
judgment of conviction, a statement from a judicial authority that the
person has been found guilty.
\62\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F. Supp. 976 (D.Vt. 1979).
\63\ This provision is consistent with requirements imposed by
United States law. For the United States the ``appropriate'' diplomatic
or consular officer would be the ``principal'' diplomatic or consular
officer of the U.S. Embassy in Argentina. See Title 18, United States
Code, Section 3190. Since Argentine law does not require that the
diplomatic or consular officer be the ``principal'' one, the term
``appropriate'' was included. This will render less onerous for U.S.
officials the task of preparing extradition requests to Argentina.
\64\ Current United States law provides that such surrender should
occur within two calendar months from the finding that the offender is
extraditable, or from the conclusion of any litigation challenging that
finding, whichever is later. See Title 18, United States Code, Section
3188. See also Jimenez v. United States District Court, 84 S.Ct. 14
(1963) (decided by Goldberg, J., in chambers); Liberto v. Emery, 724
F.2d 23 (2d Cir. 1983); and In Re United States, 713 F.2d 105 (5th Cir.
1983); and Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
Argentine law requires that the Requesting State take custody of
the person sought within 30 calendar days of the formal notification by
the Argentine Government to the Requesting State that the person is
available for transfer of custody. See Art. 30, Law No. 24,767
(Criminal Procedure Code) (1997). The 30-day period may be extended for
an additional 10 days upon request by the Requesting State. See id.
\65\ See, e.g., U.S. extradition treaties with The Bahamas,
Bolivia, and the Philippines.
\66\ Under United States law and practice, the Secretary of State
would make the decision to temporarily surrender the fugitive or to
defer the surrender. Koskotas v. Roche, 740 F. Supp. 904, 920 (D.Mass.
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
\67\ This provision was included at the request of Argentina, whose
negotiating delegation wished to ensure that the postponement of the
surrender of Argentine fugitives by the United States would not
jeopardize Argentina's ability to prosecute those fugitives upon their
eventual surrender to Argentina. Under United States law, in contrast,
the statute of limitations is suspended upon the filing of an
indictment or other charging document. See, e.g., Title 18, United
States Code, section 3282. Because, in any case in which the United
States requests extradition of a fugitive from Argentina, the fugitive
will have already been charged and the statute of limitations
suspended, this provision will not have any legal effect for the United
States above and beyond that which is already provided by U.S. law.
\68\ Under U.S. 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).
\69\ Allowing the Requesting State to proceed on a ``differently
denominated or less serious offense'' provides both the prosecution and
defense with a measure of post-extradition flexibility to resolve the
charges. For example, it allows the defendant to plead to or be
convicted at trial of a lesser included offense, or it allows the
prosecution to supersede the original charges with different charges
that, because of a change in circumstances, may be more readily
provable, so long as they are based on the same facts as the offenses
for which extradition was granted. Proceeding on differently
denominated or lesser included offenses does not offend the purpose of
the rule of speciality, since the Requested State will have already
considered the facts upon which both the original and the new charges
are based and determined that the acts constituting the offenses are
extraditable.
\70\ From its inception, the rule of speciality has applied only to
those illegal acts committed prior to extradition. It does not provide
the defendant with any immunity for offenses committed after his or her
surrender to the Requesting State.
\71\ The consent exception to the rule of specialty recognizes
that, as a Party to the Treaty, the Requested State has a right to
waive certain of its benefits or privileges under the Treaty. In the
United States, the Secretary of State has the authority to consent. See
Berenguer v. Vance, 473 F.Supp. 1195, 1199 (D.D.C. 1979).
\72\ This provision prohibiting re-extradition is intended to
prevent the State to which a person is extradited from subsequently
extraditing the person to a third state to which the Requested State
would not have agreed to extradite. This provision thus enables the
Requested State to retain a measure of control over the ultimate
destination of the person surrendered. A similar provision is contained
in all recent U.S. extradition treaties.
\73\ The policy behind paragraph 3 is that an extraditee should not
be allowed to benefit from the rule of speciality indefinitely and
remain in or return to the Requesting State with impunity. Under this
paragraph, if the extraditee chooses to return to or remain in the
Requesting State, he or she effectively relinquishes the benefits of
the rule. Generally, the United States prefers that the time period
afforded to the fugitive to leave the Requesting State be as short as
practicable in order to avoid law enforcement and public frustration
over having such a person at large in the community.
\74\ Waiver of extradition benefits the fugitive in that it allows
him to return forthwith to resolve the charges against him in the
Requesting State and to spend as little time as possible in custody in
the Requested State. It also saves the judicial and law enforcement
authorities of the Requested State the significant expense associated
with a prolonged extradition process.
\75\ A similar provision is in all recent U.S. extradition
treaties.
\76\ The Parties' representation of each other in extradition
proceedings ensures that the Parties abide by their obligation under
the Treaty to secure the return of every extraditable criminal to the
Requesting State. By participating in the extradition proceedings, the
Parties also have the opportunity to shape extradition law and practice
in a way that is beneficial to both themselves and their treaty
partners. In accordance with established practice, the Department of
Justice will represent Argentina in extradition proceedings in the
United States. Likewise, Argentine federal prosecutors will represent
the United States in such proceedings in Argentina. In fact, the United
States and Argentina already provide representation to each other in
extradition cases under the 1972 Treaty, and, with this provision, the
Parties intend to continue the current practice.
\77\ This is a standard provision in all modern U.S. extradition
treaties.
\78\ See, e.g., U.S. extradition treaties with Bolivia, Jordan, and
the Philippines.
\79\ See, e.g., U.S. extradition treaties with The Bahamas,
Bolivia, Ireland, Italy, Jamaica, and Thailand.
\80\ U.S. Const., art. I, Sec. 9, cl. 3.
\81\ See In re De Giacomo, 7 F.Cas. 366 (C.C.N.Y. 1874); See also 4
Moore, A Digest of International Law 268 (1906).
\82\ The 1972 treaty does not contain an express provision
authorizing the waiver of extradition, and the application of Article
17 of this Treaty to pending proceedings under the 1972 treaty will
allow fugitives to utilize Article 17 to facilitate their return to the
Requesting State.
\83\ The application of Article 16 of this Treaty to persons
extradited under the prior treaty will allow the parties to take
advantage of improved provisions in Article 16, such as the ability to
detain a person while a request for consent is being considered.
\84\ Extradition between the U.S. and Austria is governed by the
Convention for the Extradition of Fugitives from Justice, with exchange
of notes concerning the Death Penalty (hereinafter the ``1930
Convention''), signed at Vienna January 31, 1930 (46 Stat. 2779; TS
822; 5 Bevans 358) (entered into force Sept. 11, 1930), and the
Supplementary Convention on Extradition signed at Vienna May 19, 1934,
(49 Stat. 2710; TS 873; 5 Bevans 378) (entered into force Sept. 5,
1934).
\85\ ``Federal Law of December 4, 1979, Regarding Extradition and
Judicial Assistance in Criminal Matters,'' Bundesgesetzblatt No. 529/
1979 (hereinafter ``Austrian Extradition Law''). Section 1 of the law
states that ``The provisions of this Federal Law shall be applicable
only to the extent that international agreements do not provide
otherwise.'' Thus, in case of conflict between the treaty and Austrian
statutory law, the treaty controls.
\86\ See Stanbrook and Stanbrook, Extradition: The Law and
Practice 25-26 (1979).
\87\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\88\ See 18 U.S.C. Sec. 1341.
\89\ See 18 U.S.C. Sec. 2314.
\90\ 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. & Criminology 1109 (1982).
\91\ Palmer, The Austrian Law of Extradition and Mutual Assistance
64-65, Library of Congress Law Library (1983).
\92\ The English text of the Treaty as originally signed
incorrectly read, ``Extradition shall be granted. . .'' By way of an
exchange of notes between the Parties, ``may'' has been substituted in
this paragraph and reflects the true intent of the negotiators.
\93\ U.S.-Costa Rica Extradition Treaty, Dec. 4, 1982, art. 3; Cf.
U.S.-Bolivia Extradition Treaty, June 29, 1995, art. II(3)(b); U.S.-
Ireland Extradition Treaty, July 13, 1983, art. III(1) (TIAS 10813).
\94\ Our policy of drawing no distinction between United States
nationals and others in extradition matters is underscored by Title 18,
United States Code, Section 3196, which 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 have been met. 18 U.S.C. Sec.
3196.
\95\ Section 12, Austrian Extradition Law.
\96\ See, e.g., Article 3, U.S.-Hungary Extradition Treaty,
December 1, 1994; Article 8, U.S.-Costa Rica Extradition Treaty,
December 4, 1982.
\97\ Cf. Section 14, Austrian Extradition Law.
\98\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\99\ There are similar provisions in many recent treaties. See
Article III(3), U.S.-Jamaica Extradition Treaty, June 14, 1983; Article
5(4), U.S.-Spain Extradition Treaty, May 29, 1970, (22 UST 737, TIAS
7136, 796 UNTS 245); Article 4, U.S.-Netherlands Extradition Treaty,
June 24, 1980 (TIAS 10733).
\100\ 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).
\101\ An example of such a crime is desertion. Matter of Suarez-
Mason, 694 F. Supp. 676, 703 (N.D. Cal. 1988).
\102\ See Section 16(1), Austrian Extradition Law.
\103\ Many recent U.S. treaties provide that extradition shall not
be denied on the ground that the Requested State declined to prosecute
or discontinued proceedings against the person sought. Austria would
not agree to such a provision because Section 16(1) of Austrian
Extradition Law requires denial of extradition in such cases. The
discretionary wording of this article was designed to avoid impeding
the United States' ability to grant extradition in such cases.
\104\ See, e.g., Article 4(1)(ii), U.S.-Canada Extradition Treaty,
signed December 3, 1971, entered into force March 22, 1976 (3 UST 2826,
TIAS 8237). It is settled law in the United States that lapse of time
is not a defense to extradition unless the treaty specifically provides
to the contrary. Freedman v. United States, 437 F. Supp. 1252 (D. Ga.
1977); United States v. Galanis, 429 F. Supp. 1215 (D. Conn. 1977). By
contrast, Austrian law requires that extradition be denied if the
statute of limitations or other provisions on lapse of time have
expired in either the requesting or the requested state. Section 18,
Austrian Extradition Law. Thus, Article 7 represents a reasonable
compromise between the two positions.
\105\ Article 85, Austrian Federal Constitution.
\106\ Section 20, Austrian Extradition Law.
\107\ See, e.g., Article 7, U.S.-Hungary Extradition Treaty,
December 1, 1994; Article 6, U.S.-Netherlands Extradition Treaty, June
24, 1980 (TIAS 10733); Article 6, U.S.-Ireland Extradition Treaty, July
13, 1983 (TIAS 10813).
\108\ Article 8(6), U.S.-Cyprus Extradition Treaty, signed June 17,
1996.
\109\ 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).
\110\ See 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).
\111\ See, e.g., Article 10, U.S.-Costa Rica Extradition Treaty,
Dec. 4, 1982; Article 11, U.S.-Italy Extradition Treaty, Oct. 13, 1983
(TIAS 10837); Article I(2), U.S.-Jamaica Extradition Treaty, June 14,
1983.
\112\ United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
\113\ 18 U.S.C. Sec. 3188.
\114\ See Jimenez v. U.S. District Court, 84 S. Ct. 14 (1963)
(decided by Goldberg, J., in chambers); see also Liberto v. Emery, 724
F.2d 23 (2d Cir. 1983); In re United States, 713 F.2d 105 (5th Cir.
1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
\115\ Section 29(3), Austrian Extradition Law.
\116\ Under United States law and practice, the Secretary of State
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass.
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
\117\ Section 12(2), Austrian Extradition Law, permits Austria to
return one of its citizens who was temporarily surrendered to it by the
United States.
\118\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\119\ Section 24, Austrian Extradition Law.
\120\ While the text of the second sentence of Article 18(1)
standing alone appears to be mandatory, the negotiators intended and
understood the sentence to be read with the first sentence and
therefore to be discretionary, since there are circumstances (e.g., a
related prosecution in the Requested State) where the Requested State
might view it as appropriate to decline surrender of such items to the
Requesting State, or delay or condition such surrender.
\121\ Section 6, Austrian Extradition Law, states that this
provision shall not preclude the handing over, transportation, and
delivery of property in connection with the extradition, so that this
provision will give Austria reciprocal benefits when it requests
extradition from the United States.
\122\ 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). It is
unclear who in the executive authority in Austria will give consent.
See generally Palmer, supra note 10, at 69-71. This was intended to
preserve intact each Party's right to arrest the extradited person for
deportation at the conclusion of the sentence, or to file charges
against the extradited person solely to toll the statute of
limitations.
\123\ If the United States is the Requested State and the person
sought elects to return voluntarily to the Republic of Austria before
the United States Secretary of State signs a surrender warrant, the
process would be deemed to be a voluntary return rather than an
``extradition.''
\124\ Section 32, Austrian Extradition Law.
\125\ See, e.g., Article 19, U.S.-Belgium Extradition Treaty, Apr.
9, 1987.
\126\ Extradition between the U.S. and Barbados is currently
governed by the Treaty for the Mutual Extradition of Criminals between
the United States and Great Britain (hereinafter ``the 1931 Treaty''),
signed at London December 22, 1931, entered into force June 24, 1935,
(47 Stat. 2122; TS 849), which continued in force after Barbados became
an independent nation on November 30, 1966.
\127\ Extradition Act 1980, of 2nd June 1980 (hereinafter
``Extradition Act 1980''). The key sections of the Extradition Act
which are germane to the interpretation and implementation of the
Treaty are discussed in more detail in this Technical Analysis. The
Barbados delegation stated that in Barbados treaties do not take
priority over statutes, recognized that their extradition would have to
be amended to avoid conflict with the Treaty, and promised to take such
steps as are necessary to effectively carry out the obligations in this
Treaty.
\128\ See Stanbrook and Stanbrook, Extradition: The Law and
Practice, 25-26 (1979).
\129\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 402 (1987); Blakesley, United States Jurisdiction
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology
1109 (1982).
\130\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\131\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our
policy of drawing no distinction between nationals of the United States
and those of other countries in extradition matters is underscored by
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of
State to extradite U.S. citizens pursuant to treaties that permit (but
do not require) surrender of citizens, if other requirements of the
Treaty have been met.
\132\ Section 7(1)(a), Extradition Act 1980, provides that
extradition shall be denied if the crime is an offense ``of a political
character.'' The Barbados delegation assured the United States that
this is identical to the political offense defense. Similar provisions
appear in all recent U.S. extradition treaties.
\133\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\134\ There are similar provisions in many U.S. extradition
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at
Kingston June 14, 1983, entered into force July 7, 1991; Article 5(4),
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article
4, US-Netherlands Extradition Treaty, signed at The Hague June 24,
1980, entered into force September 15, 1983 (TIAS 10733); and Article
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13,
1983, entered into force Dec. 15, 1984 (TIAS 10813).
\135\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert.
denied 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\136\ An example of such a crime is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal.
1988).
\137\ Similar provisions appear in many treaties, including Article
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March
28, 1995, entered into force July 29, 1995.
\138\ Barbados law permits requests to be made either by a U.S.
consular officer stationed in Barbados, a request to the Attorney
General through Barbados' diplomatic representatives stationed in the
United States, or ``by such other person or by such other means as may
be settled by arrangement ...'' Extradition Act 1980, Section 23.
\139\ See Extradition Act 1980, Section 17(1).
\140\ 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
Section 476, comment b.
\141\ See, e.g., Spatola v. United States, 741 F.Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F.Supp. 976 (D. Vt. 1979).
\142\ See sSection 15, Extradition Act 1980.
\143\ This provision is consistent with requirements imposed by
U.S. law. See Title 18, United States Code, Section 3190.
\144\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
\145\ Similar provisions appear in all recent U.S. extradition
treaties. The topic of provisional arrest is dealt with in Barbados
Extradition Act 1980, Section 23.
\146\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
\147\ Title 18, United States Code, Section 3188.
\148\ Jimenez v. United States District Court, 84 S. Ct. 14, 11
L.Ed 2d 30 (1963)(decided by Goldberg, J., in chambers). See also
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th
Cir. 1978).
\149\ Barbados Extradition Act 1980, Section 32.
\150\ Under United States law and practice, the Secretary of State
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D.
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\151\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\152\ Extradition Act 1980, Section 25.
\153\ Similar provisions are found in all recent U.S. extradition
treaties, and in the Extradition Act 1980, Section 30.
\154\ In the United States, the Secretary of State has the
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp.
1195, 1199 (D.D.C. 1979). For Barbados, it is the Attorney General. Cf.
Extradition Act 1980, Section 7(2)(b)(iii).
\155\ Thus, the provision is consistent with the provisions of all
recent U.S. extradition treaties.
\156\ A similar provision is in all recent U.S. extradition
treaties.
\157\ This provision supersedes the contrary provision in Title 18,
United States Code, Section 3195. Barbados law requires that all
expenses be paid by the Requesting State unless otherwise provided by
treaty (Extradition Act 1980, Section 31), so this express treaty
provision would take precedence.
\158\ See Article 20, U.S.-Jordan Extradition Treaty, supra, note
17; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered
into force September 10, 1997; Article 18, U.S.-Philippines Extradition
Treaty, signed at Manila Nov. 13, 1994, entered into force November 11,
1996; Article 21, U.S. -Hungary Extradition Treaty, signed at Budapest
Dec. 1, 1994, entered into force March 18, 1997.
\159\ Extradition between the U.S. and Cyprus is currently governed
by the Treaty for the Mutual Extradition of Criminals between the
United States and Great Britain, signed at London December 22, 1931,
entered into force June 24, 1935, 47 Stat. 2122; TS 849, 12 Bevans 482;
163 LNTS 59, which continued in force after Cyprus became an
independent nation on August 16, 1960.
\160\ Republic of Cyprus Law No. 97 of 1970 (hereinafter ``the
Extradition of Fugitive Offenders Law 1970''). The key sections of the
Extradition of Fugitive Offenders Law 1970 that are germane to the
interpretation and implementation of the Treaty are discussed in more
detail in this Technical Analysis.
\161\: See Stanbrook and Stanbrook, Extradition: The Law and
Practice 25-26 (1979).
\162\ See 18 U.S.C Sec. 1341.
\163\ See 18 U.S.C. Sec. 2314.
\164\ 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. & Criminology 1109 (1982).
\165\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\166\ 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 United States nationals and
others in extradition matters is underscored by Title 18, United States
Code, Section 3196, which 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 have been met.
\167\ Section 6(1), Extradition of Fugitive Offenders Law 1970.
\168\ ``This constitutional provision (the reason for which will be
clear to anyone familiar with the communal problems on the island) was
interpreted in 1961 by the Supreme Court of Cyprus as preventing even
the surrender of a Cypriot to Great Britain . . .'' Shearer,
Extradition in International Law 102 (1971). See also Stanbrook,
Extradition: the Law and Practice 39 (1980). Cyprus has never
extradited one of its citizens to the United States or to any other
nation.
\169\ Cyprus has jurisdiction to prosecute its citizens for crimes
committed outside its territory if the offense is one punishable in
Cyprus with death or imprisonment exceeding two years and is also
punishable by the law of the country where it was committed and for any
offense committed while the citizen is in the service of Cyprus.
Article 5 of the Cyprus Criminal Code, Chapter 154, as amended. In
fact, the Cyprus delegation assured the U.S. that few crimes for which
extradition would be sought have a penalty of less than two years in
Cyprus. Thus, virtually all offenses that are extraditable under the
treaty could form the basis for a domestic prosecution in Cyprus.
\170\ See, e.g., Article 3, U.S.-Hungary Extradition Treaty, signed
at Budapest December 1, 1994; Article 8, U.S.-Costa Rica Extradition
Treaty, signed December 4, 1982; U.S.-Mexico Extradition Treaty, signed
May 4, 1978.
\171\ Similar provisions appear in all recent U.S. extradition
treaties. Section 6(1)(a), Extradition of Fugitive Offenders Law 1970,
provides that extradition shall be denied if the crime is an offense
``of a political character.'' The Cyprus delegation assured the United
States that this is identical to the political offense defense.
\172\ Section 6(5) of the Extradition of Fugitive Offenders Law
1970 states that a crime cannot be an offense of a political character
if it involves an attempt on the life or person of ``the head of the
Commonwealth'' or involves conspiring, attempting, or participating in
a crime listed in the Schedule to the Law, or impeding the arrest or
prosecution of others guilty of such crimes.
\173\ Done at Vienna, December 20, 1988, entered into force
November 11, 1990.
\174\ There are similar provisions in many U.S. extradition
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at
Kingston June 14, 1983, entered into force Jul 7, 1991; Article 5(4),
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article
4, US-Netherlands Extradition Treaty, signed at The Hague June 24,
1980, entered into force September 15, 1983 (TIAS 10733); and Article
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13,
1983, entered into force Dec. 15, 1984 (TIAS 10813).
\175\ See Eain v. Wilkes, 641 F.2d 504, 513 (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).
\176\ An example of such a crime is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal.
1988).
\177\ It also resembles Section 6(2) of the Extradition of Fugitive
Offenders Law 1970, which prohibits extradition of a person ``if it
appears . . . that if charged with the offence in the Republic [of
Cyprus] he would be entitled to be discharged under any rule of law
relating to previous acquittal or conviction.''
\178\ See, e.g., Article 7, U.S.-Hungary Extradition Treaty, supra
note 11; Article 7, U.S.-Netherlands Extradition Treaty, supra note 19;
Article 6, U.S.-Ireland Extradition Treaty, supra note 21.
\179\ Section 11(4), Extradition of Fugitive Offenders Law 1970.
\180\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
\181\ Courts applying Title 18, United States Code, Section 3184
have long required probable cause for international extradition. See
Restatement (Third) of the Foreign Relations Law of the United States,
section 476, comment b (1987).
\182\ Courts applying Title 18, United States Code, Section 3184
long have required probable cause for international extradition.
Restatement (Third) of the Foreign Relations Law of the United States
Sec. 476 comment b (1987).
\183\ See 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).
\184\ See, e.g., Article 10, U.S.-Costa Rica Extradition Treaty,
supra note 12; Article 11, U.S.-Italy Extradition Treaty, signed Oct.
13, 1983. However, the Cyprus Treaty differs from these two in that it
does not provide specifically for the release of the person sought if
the additional information is not supplied within the specified
deadline.
\185\ Article 8 of the treaty states: ``The extradition of fugitive
criminals under the provisions of this Treaty shall be carried out in
the United States and in the territory of His Britannic Majesty
respectively, in conformity with the laws regulating extradition for
the time being in force in the territory from which the surrender of
the fugitive criminal is claimed.''
\186\ Section 13, Extradition of Fugitive Offenders Law 1970.
\187\ Title 18, United States Code, Section 3190.
\188\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979)
\189\ 18 U.S.C. Sec. 3188.
\190\ See Jimenez v. U.S. District Court, 84 S. Ct. 14, 11 L. Ed.
2d 30 (1963) (decided by Goldberg, J., in chambers); see also Liberto
v. Emery, 724 F.2d 23 (2d Cir. 1983); In re United States, 713 F.2d 105
(5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th Cir.
1978).
\191\ Section 12, Extradition of Fugitive Offenders Law 1970.
\192\ Under United States law and practice, the Secretary of State
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass.
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
\193\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\194\ Section 11(5), Extradition of Fugitive Offenders Law 1970.
\195\ 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). In Cyprus,
it is the Minister of Justice. Section 6(3)(c), Extradition of Fugitive
Offenders Law 1970.
\196\ Cf. Article 16, U.S.-Netherlands Extradition Treaty, supra
note 21.
\197\ See, e.g., Article 20, U.S.-Jordan Extradition Treaty, signed
at Washington March 28, 1995, July 29, 1995; Article 19, U.S.-Belgium
Extradition Treaty, signed at Brussels April 27, 1987, entered into
force September 1, 1997; Article 24, U.S.-Switzerland Extradition
Treaty, signed at Bern Nov. 14, 1990, entered into force September 10,
1997; Article 18, U.S.-Philippines Extradition Treaty, signed at Manila
Nov. 13, 1994, entered into force November 22, 1996; Article 21, U.S.-
Hungary Extradition Treaty, signed at Budapest Dec. 1, 1994, entered
into force March 18, 1997.
\198\ Extradition between the U.S. and Dominica is currently
governed by the U.S.-U.K. Extradition Treaty (hereinafter ``the 1972
Treaty''), signed June 8, 1972, entered into force January 21, 1977 (28
UST 227, TIAS 8468), which continued in force after Dominica became an
independent nation on November 3, 1978.
\199\ Chapter 12:04, Laws of Dominica, Extradition Act 1981. The
key sections of the Extradition Act 1981 which are germane to the
interpretation and implementation of the Treaty are discussed in more
detail in this Technical Analysis. The Dominica delegation stated that
in general in Dominica treaties do not take priority over statutes, and
that the courts are bound by the Act, though the Government is bound by
the Treaty. The application of Dominica's extradition law, however, is
``subject to any limitations, conditions, exceptions, or qualifications
as are necessary to give effect to [the] treaty. . .'' Section 39(2),
Extradition Act 1981, so Dominica's delegation assured the United
States that the terms of this Treaty would be given full effect.
\200\ See Stanbrook and Stanbrook, Extradition: The Law and
Practice, 25-26 (1979).
\201\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. s 402 (1987); Blakesley, United States Jurisdiction
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology
1109 (1982).
\202\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\203\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our
policy of drawing no distinction between nationals of the United States
and those of other countries in extradition matters is underscored by
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of
State to extradite U.S. citizens pursuant to treaties that permit (but
do not require) surrender of citizens, if other requirements of the
Treaty have been met.
\204\ Section 7(1), Extradition Act 1981, provides that extradition
shall be denied if the crime is an offense ``of a political
character.'' The Dominica delegation assured the United States that
this is identical to the political offense defense. Similar provisions
appear in all recent U.S. extradition treaties.
\205\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\206\ There are similar provisions in many U.S. extradition
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at
Kingston June 14, 1983, and entered into force July 7, 1991; Article
5(4), US-Spain Extradition Treaty, signed at Madrid May 29, 1970,
entered into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245);
Article 4, US-Netherlands Extradition Treaty, signed at The Hague June
24, 1980, entered into force September 15, 1983 (TIAS 10733); and
Article IV(c), US-Ireland Extradition Treaty, signed at Washington July
13, 1983, entered into force Dec. 15, 1984 (TIAS 10813).
\207\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert.
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\208\ An example of such a crime is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal.
1988).
\209\ Similar provisions appear in many treaties, including Article
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March
28, 1995, entered into force July 29, 1995.
\210\ Article IX(1), 1972 Treaty.
\211\ See Extradition Act 1980, Section 17(1).
\212\ 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
Section 476, comment b.
\213\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F. Supp. 976 (D. Vt. 1979).
\214\ See Article VII(5) of the 1972 Treaty.
\215\ This provision is consistent with requirements imposed by
U.S. law. See Title 18, United States Code, Section 3190.
\216\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
\217\ Similar provisions appear in all recent U.S. extradition
treaties.
\218\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
\219\ Title 18, United States Code, Section 3188.
\220\ Jimenez v. United States District Court, 84 S. Ct. 14, 11
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th
Cir. 1978).
\221\ Section 32, Extradition Act 1981.
\222\ Under United States law and practice, the Secretary of State
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D.
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\223\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\224\ Section 24, Extradition Act 1981.
\225\ Similar provisions are found in all recent U.S. extradition
treaties.
\226\ In the United States, the Secretary of State has the
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp.
1195, 1199 (D.D.C. 1979). For Dominica, it is the Attorney General. See
Section 7(2)(b)(3), Extradition Act 1981.
\227\ Thus, the provision is consistent with the provisions of all
recent U.S. extradition treaties.
\228\ A similar provision is in all recent U.S. extradition
treaties.
\229\ See Article 20, U.S.-Jordan Extradition Treaty, supra note
12; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered
into force September 10, 1997; Article 18, U.S.-Philippines Extradition
Treaty, signed at Manila Nov. 13, 1994, entered into force November 22,
1996; Article 21, U.S. -Hungary Extradition Treaty, signed at Budapest
Dec. 1, 1994, entered into force March 18, 1997.
\230\ The Extradition Treaty signed at Paris January 6, 1909,
entered into force July 27, 1911, (37 Stat. 1526; TS 561; 7 Bevans
872). The Supplementary Extradition Convention signed at Paris February
12, 1970, entered into force April 3, 1971 (22 UST 407; TIAS 7075; 791
UNTS 273).
\231\ Loi reglant les conditions, la procedure, et les effets de
l'extradition, decret du 11 mars 1927 (hereinafter ``Extradition Law
1927''). This Technical Analysis discusses key sections of the
Extradition Law 1927 that are germane to the interpretation and
implementation of the Treaty.
\232\ See Stanbrook and Stanbrook, Extradition: The Law and
Practice 25-26 (1979).
\233\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\234\ Shearer, Extradition in International Law 74 (1971); Article
23, Extradition Law 1927.
\235\ See 18 U.S.C Sec. 1341.
\236\ See 18 U.S.C. Sec. 2314.
\237\ 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. & Criminology 1109 (1982).
\238\ French jurisprudence divides offenses into three categories:
crimes (major felonies), delits (lesser felonies), and contraventions
(petty offenses). See Kock, Criminal Proceedings in France, 9 American
Journal of Int'l Law 253 (1960). France asserts an extraterritorial
criminal jurisdiction over its nationals for major felonies committed
anywhere in the world, and for lesser felonies if punishable at the
place where committed. France also asserts criminal jurisdiction over
aliens located in France whose acts, though committed outside of
France, endanger the safety or financial credit of the French state.
Delaume, Jurisdiction over Crimes Committed Abroad: French and American
Law 21 Geo. Wash. Crim. Rev. 173 (1952). France also asserts
jurisdiction over aliens who commit offenses against French nationals
outside of France.
\239\ See generally Shearer, Extradition in International Law 110-
14 (1971); 6 Whiteman, Digest of International Law 871-76 (1968). Our
policy of drawing no distinction between United States and other
nationals in extradition matters is underscored by Title 18, United
States Code, Section 3196. This 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 have been met.
\240\ See Act 5(1), Extradition Law 1927. See 6 Whiteman Digest of
International Law 871 (1968). Indeed, France is one of the originators
and staunchest defenders of the practice of not extraditing nationals.
Shearer, Extradition in International Law 95, 96, 104 (1971).
\241\ See, e.g., Article 8, U.S.-Costa Rica Extradition Treaty,
Dec. 4, 1982; Article 9, U.S.-Mexico Extradition Treaty, May 4, 1978
(31 UST 5059, TIAS 9656).
\242\ For a detailed description of French jurisprudence, see
Carbonneau, French Judicial Perspectives on the Extradition of
Transnational Terrorists and the Political Offense Exception (1981);
Goldie, The Political Offense Exception and Extradition Between
Democratic States, 13 Ohio N.U. L. Rev. 53 (1986); Comment, The
Political Offense Exemption to Extradition; Protecting the Right of
Rebellion in an Era of International Political Violence, 66 Or. L. Rev.
405 (1987); Comment, Revolutionaries Beware: The Erosion of the
Political Offense Exception under the 1986 United States-United Kingdom
Supplementary Extradition Treaty, 136 U. Pa. L. Rev. 1515 (1988);
Comment, The Political Offense Exception: An Historical Analysis and
Model for the Future, 64 Tul. L. Rev. 1195 (1990); Taulbee, Political
Crimes, Human Rights, and Contemporary International Practice, 4 Emory
Int'l L. Rev. 43 (1990).
\243\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\244\ This paragraph includes offenses covered by the Convention
for the Protection of Internationally Protected Persons, Including
Diplomatic Agents, done at New York December 14, 1973, (28 UST 1975,
TIAS 8532, 1035 UNTS 167). France is not a party to this Convention.
\245\ This paragraph includes offenses under the Convention on the
Taking of Hostages, done at New York December 17, 1979, (TIAS 11081).
France is not a party to this convention.
\246\ These factors are drawn directly from Art. 13(1) of the
European Convention on the Suppression of Terrorism.
\247\ Article IV(c), U.S.-Ireland Extradition Treaty, signed at
Washington July 13, 1983, entered into force December 15, 1984 (TIAS
10813).
\248\ The long-standing U.S. law and practice have been that the
Secretary of State alone has the discretion to determine whether an
extradition request is based on improper motivation. 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).
\249\ Article 5, U.S.-Germany Extradition Treaty, signed at Bonn
June 20, 1978, entered into force August 29, 1980 (TIAS 9785).
\250\ An example of such a crime is desertion. See, e.g., In re
Suarez-Mason, 694 F. Supp. 676, 703 (N.D. Cal. 1988).
\251\ The French delegation wanted the provision to read ``unless
the Requesting State provides sufficient assurances . . .'' in order to
maximize the Requested State's discretion. After extensive discussion,
the French delegation agreed to drop the term ``sufficient,'' but
reserved France's right to decide on a case-by-case basis whether to
accept assurances offered to it.
\252\ See, e.g., Article 7, U.S.-Hungary Extradition Treaty,
December 1, 1994; Article 6, U.S.-Ireland Extradition Treaty, July 13,
1983 (TIAS 10813); Article 7, U.S.-Netherlands Extradition Treaty, June
24, 1980 (TIAS 10733).
\253\ This is consistent with some other U.S. extradition treaties
that require denial of the request if the statute of limitations would
have run in the Requested State had the offense been committed in that
state. See, e.g., Article 4, U.S.-Japan Extradition Treaty, signed
March 3, 1978, and entered into force March 26, 1980 (31 UST 892, TIAS
9625); Article 6, U.S.-Netherlands Extradition Treaty, supra note 29.
The Treaty provides slightly more flexibility for the United States
than the current Supplementary Extradition Convention, which bars
extradition if the statute of limitations has expired in either the
Requesting or Requested State. It is consistent with settled law in the
United States, which holds that lapse of time is not a defense to
extradition at all unless the treaty specifically provides to the
contrary. Freedman v. United States, 437 F. Supp. 1252 (D. Ga. 1977);
United States v. Galanis, 429 F. Supp. 1215 (D. Conn. 1977).
\254\ The statute of limitations in France is currently ten years
for major felonies (crimes) and three years for lesser felonies
(delits). Note, Statute of Limitations: Penetrable Barrier to
Prosecution, 102 U. Pa. L. Rev. 630 (1954); Note, 50 Prescription of
Crime, Scottish L. Rev. at 261 (1934).
\255\ Courts applying Title 18, United States Code, Section 3184
long have required probable cause for international extradition.
Restatement (Third) of the Foreign Relations Law of the United States
Sec. 476 comment b (1987).
\256\ Shearer, supra note 5, at 157-165.
\257\ See 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).
\258\ This provision is consistent with requirements imposed by
U.S. Law. See Title 18, United States Code, Section 3190.
\259\ Cf. Clark, supra note 34.
\260\ See, e.g., Article 10, U.S.-Costa Rica Extradition Treaty,
December 4, 1982; Article 11, U.S.-Italy Extradition Treaty, October
13, 1983 (TIAS 10837).
\261\ U.S. law currently permits a person to request release if he
has not been surrendered within two calendar months of having been
found extraditable, or of the conclusion of any litigation challenging
that finding, whichever is later. See 18 U.S.C. Sec. 3188; Jimenez v.
U.S. District Court, 84 S. Ct. 14 (1963) (decided by Goldberg, J., in
chambers). See also Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In re
United States, 713 F.2d 105 (5th Cir. 1983); Barrett v. United States,
590 F.2d 624 (6th Cir. 1978).
\262\ See Article 18, Extradition Act 1927.
\263\ Under United States law and practice, the Secretary of State
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass.
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
\264\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\265\ Article 6, Extradition Act 1927.
\266\ See, e.g., See Article 19, U.S.-Belgium Extradition Treaty,
signed at Brussels April 27, 1987, entered into force September 1,
1997; Article 24, U.S.-Switzerland Extradition Treaty, signed at Bern
Nov. 14, 1990, entered into force September 10, 1997.
\267\ Extradition between the U.S. and Grenada is currently
governed by the Treaty for the Mutual Extradition of Criminals between
the United States and Great Britain (hereinafter the ``1931 Treaty''),
signed at London December 22, 1931, entered into force June 24, 1935,
47 Stat. 2122; TS 849, which continued in force after Grenada became an
independent nation on February 7, 1974.
\268\ Extradition Act 1870, 33 & 34 Vict., c. 52 (hereinafter
``Extradition Act 1870''). This British statute governed extradition at
the time Grenada became independent from the United Kingdom in 1974,
and continues to be the law in effect on this topic. The key sections
of the Extradition Act 1870 that are germane to the interpretation and
implementation of the Treaty are discussed in more detail in this
Technical Analysis. The Grenada delegation stated that in Grenada
treaties do not take priority over statutes, recognized that their
extradition law would have to be amended to avoid conflict with the
Treaty, and promised to take such steps as are necessary to effectively
carry out the obligations in this Treaty.
\269\ See Stanbrook and Stanbrook, Extradition: The Law and
Practice, 25-26 (1979).
\270\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 402 (1987); Blakesley, United States Jurisdiction
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology
1109 (1982).
\271\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\272\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our
policy of drawing no distinction between nationals of the United States
and those of other countries in extradition matters is underscored by
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of
State to extradite U.S. citizens pursuant to treaties that permit (but
do not require) surrender of citizens, if other requirements of the
Treaty have been met.
\273\ Section 3(1), Extradition Act 1870, provides that extradition
shall be denied if the crime is an offense ``of a political
character.'' The Grenada delegation assured the United States that this
is identical to the political offense defense. Similar provisions
appear in all recent U.S. extradition treaties.
\274\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\275\ There are similar provisions in many U.S. extradition
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at
Kingston June 14, 1983, entered into force July 7, 1991; Article 5(4),
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article
4, US-Netherlands Extradition Treaty, signed at The Hague June 24,
1980, entered into force September 15, 1983 (TIAS 10733); and Article
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13,
1983, entered into force Dec. 15, 1984 (TIAS 10813).
\276\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert.
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\277\ An example of such a crime is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal.
1988).
\278\ Similar provisions appear in many treaties, including Article
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March
28, 1995, entered into force July 29, 1995.
\279\ Article 9, 1931 Treaty.
\280\ See Extradition Act 1980, Section 17(1).
\281\ 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
Section 476, comment b.
\282\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F. Supp. 976 (D. Vt. 1979).
\283\ See Sections 14-15, Extradition Act 1870.
\284\ This provision is consistent with requirements imposed by
U.S. law. See Title 18, United States Code, Section 3190.
\285\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215,1224 (D. Conn. 1977).
\286\ Similar provisions appear in all recent U.S. extradition
treaties.
\287\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979)
\288\ Title 18, United States Code, Section 3188.
\289\ Jimenez v. United States District Court, 84 S. Ct. 14, 11
L.Ed. 2d 30 (1963) (decided by Goldberg, J., in chambers). See also
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th
Cir. 1978).
\290\ Extradition Act 1870, Section 12.
\291\ Under United States law and practice, the Secretary of State
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D.
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\292\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\293\ Similar provisions are found in all recent U.S. extradition
treaties.
\294\ In the United States, the Secretary of State has the
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp.
1195, 1199 (D.D.C. 1979).
\295\ Thus, the provision is consistent with the provisions of all
recent U.S. extradition treaties.
\296\ Cf. Article 16, US-Netherlands Treaty, supra note 13.
\297\ A similar provision is in all recent U.S. extradition
treaties.
\298\ See Article 20, U.S.-Jordan Extradition Treaty, supra note
16; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered
into force September 10, 1997; Article 18, U.S.-Philippines Extradition
Treaty, signed at Manila Nov. 13, 1994, entered into force November 22,
1996; Article 21, U.S.-Hungary Extradition Treaty, signed at Budapest
Dec. 1, 1994, entered into force March 18, 1997.
\299\ See 47 Stat. 2122; TS 849; 12 Bevans 482; 163 LNTS 59.
\300\ See Extradition Act, 1962, as amended by the Extradition
(Amendment) Act, 1993 Sec. 3184 (hereinafter the Indian Extradition
Act).
\301\ See, e.g., Article 2 of the Indian Extradition Act, providing
that an ``extradition offense'' in relation to another Contracting
State is ``an offense provided for in the extradition treaty with that
State.''
\302\ See Stanbrook and Stanbrook, Extradition: The Law and
Practice 25-26 (1979).
\303\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 402 (1987); Blakesley, United States Jurisdiction
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology
1109 (1982).
\304\ Indian Penal Code of 1860 Sec. Sec. 3,4.
\305\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\306\ 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 those of other countries in extradition matters is underscored by
Title 18 U.S. Code, Section 3196, which authorizes the Secretary of
State to extradite U.S. citizens pursuant to treaties that permit (but
do not require) surrender of citizens, if other requirements of the
Treaty have been met.
\307\ See Commentary to Chapter I(1)(1), Indian Extradition Act.
\308\ Section 31(a) of the Indian Extradition Act provides that
extradition shall be denied if the offense for which a fugitive is
sought is ``of a political character.''
\309\ Done at the Hague December 16, 1970, entered into force
October 14, 1971 (22 UST 1641, TIAS 7192).
\310\ Done at Montreal September 23, 1971, entered into force
January 26, 1973 (24 UST 564, TIAS 7570).
\311\ Done at New York December 14, 1973, entered into force
February 20, 1977 (28 UST 1975, TIAS 8532, 1035 UNTS 167).
\312\ Done at New York December 17, 1979, entered into force June
3, 1983 (TIAS 11081).
\313\ Done at New York March 30, 1961, entered into force December
13, 1964, for the United States June 24, 1967 (18 UST 1407, TIAS 6298,
520 UNTS 204).
\314\ Done at Geneva March 25, 1972, entered into force August 8,
1975 (26 UST 1439, TIAS 8118, 976 UNTS 3).
\315\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\316\ An example of such a crime is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-03 (N.D. Cal. 1988).
\317\ There are similar provisions in many U.S. extradition
treaties. See, e.g., Article III(3) U.S.-Jamaica Extradition Treaty,
signed June 14, 1983. Article 5(4) U.S.-Spain Extradition Treaty,
signed May 29, 1970; Article 4 U.S.-Netherlands Extradition Treaty,
signed June 24, 1980.
\318\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert.
denied 454 U.S. 894 (1981); Koskotos v. Roche, 744 F. Supp. 904, 916
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991). See also 18 U.S.C.
Sec. 3186.
\319\ Indian Extradition Act, Sec. 31 (a).
\320\ See, e.g., Article 5, U.S.-Jordan Extradition Treaty, signed
at Washington March 28, 1995, entered into force July 29, 1995.
\321\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
\322\ Other United States extradition treaties contain similar
provisions. See, e.g., Article 4(1)(II), U.S.-Canada Extradition
Treaty, signed at Washington Dec. 3, 1971, entered into force March 22,
1976 (UST 983, TIAS 8273); Article 5, U.S.-Switzerland Extradition
Treaty, signed Nov. 11, 1990.
\323\ See, e.g., Article 7, U.S.-Netherlands Extradition Treaty,
signed at the Hague June 24, 1980, entered into force September 15,
1983 (TIAS 10733); Article 6, U.S.-Ireland Extradition Treaty, signed
at Washington July 13, 1983, entered into force December 15, 1984 (TIAS
10813).
\324\ Such a document must be issued by a competent authority.
\325\ Courts applying 18 U.S.C. Sec. 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).
\326\ See Indian Extradition Act Sec. 7(4).
\327\ 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).
\328\ See Indian Extradition Act Sec. 10.
\329\ See 18 U.S.C. Sec. 3190.
\330\ Similar provisions appear in all recent U.S. extradition
treaties.
\331\ See United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
\332\ Title 18, U.S. Code, Section 3188 provides that any U.S.
court, upon application, may discharge from custody a person so
committed.
\333\ Jimenez v. United States 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).
\334\ Indian Extradition Act, Section 24.
\335\ This is a discretionary provision exercisable by the
Requested State only; it does not create any right which a fugitive
might exercise.
\336\ Under United States law and practice, the Secretary of State
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass.
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
\337\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\338\ Indian Extradition Act Sec. 30.
\339\ Similar provisions are found in all recent U.S. extradition
treaties.
\340\ In the United States, the Secretary of State has the
authority to consent to a waiver of the rule of speciality. See
Berenguer v. Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979).
\341\ This provision is consistent with provisions in all recent
U.S. extradition treaties.
\342\ A similar provision exists in many recent U.S. extradition
treaties.
\343\ See, e.g., Article 19, U.S.-Jordan Extradition Treaty, signed
at Washington March 28, 1995, entered into force July 29, 1995 (Treaty
Doc. No. 102-17). See also 18 U.S.C. Sec. 3195.
\344\ See Article 20, U.S.-Jordan Extradition Treaty, signed at
Washington March 28, 1995 (Treaty Doc. No. 102-17); article 19, U.S.-
Belgium Extradition Treaty, signed at Brussels April 27, 1987 (Treaty
Doc. No. 102-17).
\345\ On the date the Treaty was signed, the parties expressed
their understanding in an exchange of letters, which have been provided
to the Senate for its information, that
``... as a general matter, upon extradition, a person shall be
proceeded against or punished under the ordinary criminal laws of the
Requesting State, and shall be subject to prosecution or punishment in
accordance with the Requesting State's ordinary rules of criminal
procedure. If either party is considering prosecution or punishment
upon extradition based on other laws or other rules of criminal
procedures, the Requesting State shall request consultations and shall
make such a request only upon the agreement of the Requested State.''
This understanding was developed during the negotiations after
discussions of India's Terrorist and Disruptive (Prevention) Act
(TADA), which was in force when the negotiations commenced in 1994 and
has been used in connection with the detention and prosecution of
persons charged with terrorist offenses. Although TADA lapsed on May
23, 1995, it has continuing effect with respect to cases under
investigation and trial on such date. TADA limits defendants' rights in
ways that have been the subject of criticism from non-governmental
human rights groups and the State Department's annual human rights
report. This Understanding reflects the Parties' agreement that if
either party is considering prosecution or punishment upon extradition
based on laws or rules of criminal procedures such as those in TADA,
the Requesting State shall request consultations and shall make such a
request only upon the agreement of the Requested State.
\346\ Extradition between the U.S. and St. Christopher and Nevis is
governed by the U.S.-U.K. Extradition Treaty (hereinafter ``the 1972
Treaty''), signed June 8, 1972, entered into force January 21, 1977 (28
UST 227, TIAS 8468), which continued in force after St. Christopher and
Nevis became an independent nation on September 19, 1983.
\347\ Extradition Act, 1870, 33 & 34 Vict., c. 52 (hereinafter the
``Extradition Act 1870''). This British statute governed extradition at
the time St. Christopher and Nevis became independent from the United
Kingdom, and continues to be the law in effect on this topic. The key
sections of the Extradition Act 1870 which are germane to the
interpretation and implementation of the Treaty are discussed in more
detail in this Technical Analysis. The St. Christopher and Nevis
delegation stated that in St. Christopher and Nevis treaties do not
take priority over statutes, and that the courts are bound by the Act,
though the Government is bound by the Treaty. The United States
delegation was assured that the terms of this Treaty would be given
full effect, since under Section 2 of the Extradition Act 1870, the
government of St. Christopher and Nevis may embody the terms of this
Treaty in an Order in Council that will ``render the operation of [the
Extradition Act 1870] subject to such conditions, exceptions, and
qualifications as may be deemed expedient'' to implement the Treaty.
\348\ See Stanbrook and Stanbrook, Extradition: The Law and
Practice, 25-26 (1979).
\349\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 402 (1987); Blakesley, United States Jurisdiction
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology
1109 (1982).
\350\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\351\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our
policy of drawing no distinction between nationals of the United States
and those of other countries in extradition matters is underscored by
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of
State to extradite U.S. citizens pursuant to treaties that permit (but
do not require) surrender of citizens, if other requirements of the
Treaty have been met.
\352\ Section 3(1), Extradition Act 1870, provides that extradition
shall be denied if the crime is an offense ``of a political
character.'' The St. Christopher and Nevis delegation assured the
United States that this is identical to the political offense defense.
Similar provisions appear in all recent U.S. extradition treaties.
\353\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\354\ There are similar provisions in many U.S. extradition
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at
Kingston June 14, 1983, and entered into force July 7, 1991; Article
5(4), US-Spain Extradition Treaty, signed at Madrid May 29, 1970,
entered into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245);
Article 4, US-Netherlands Extradition Treaty, signed at The Hague June
24, 1980, entered into force September 15, 1983 (TIAS 10733); and
Article IV(c), US-Ireland Extradition Treaty, signed at Washington July
13, 1983, entered into force Dec. 15, 1984 (TIAS 10813).
\355\ See Eain v. Wilkes, 641 F.2d 504, 513-518 (7th Cir.) cert.
denied 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904 (D.
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\356\ An example of such a crime is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 703-703 (N.D. Cal.
1988).
\357\ Similar provisions appear in many treaties, including Article
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March
28, 1995, entered into force July 29, 1995.
\358\ Article IX(1), 1972 Treaty. A similar requirement is found in
Section 10 of the Extradition Act 1870.
\359\ See Extradition Act 1980, Section 17(1).
\360\ 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
Section 476, comment b.
\361\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F. Supp. 976 (D. Vt. 1979).
\362\ See, Article VII(5) of the 1972 Treaty.
\363\ This provision is consistent with requirements imposed by
U.S. law. See Title 18, United States Code, Section 3190.
\364\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
\365\ Similar provisions appear in all recent U.S. extradition
treaties.
\366\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979)
\367\ Title 18, United States Code, Section 3188.
\368\ Jimenez v. United States District Court, 84 S. Ct. 14, 11
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th
Cir. 1978).
\369\ Extradition Act 1870, Section 12.
\370\ Under United States law and practice, the Secretary of State
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D.
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\371\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\372\ Similar provisions are found in all recent U.S. extradition
treaties.
\373\ In the United States, the Secretary of State has the
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp.
1195, 1199 (D.D.C. 1979).
\374\ Thus, the provision is consistent with the provisions of all
recent U.S. extradition treaties.
\375\ Cf. Article 16, US-Netherlands Treaty, supra note 9.
\376\ A similar provision is in all recent U.S. extradition
treaties.
\377\ See Article 20, U.S.-Jordan Extradition Treaty, supra note
12; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered
into force September 10, 1997; Article 18, U.S.-Philippines Extradition
Treaty, signed at Manila Nov. 13, 1994, entered into force November 22,
1996; Article 21, U.S.-Hungary Extradition Treaty, signed at Budapest
Dec. 1, 1994, entered into force March 18, 1997.
\378\ Extradition between the U.S. and Saint Lucia is governed by
the U.S.-U.K. Extradition Treaty (hereinafter ``the 1972 Treaty''),
signed June 8, 1972, entered into force January 21, 1977 (28 UST 227,
TIAS 8468), which continued in force after Saint Lucia became an
independent nation on February 23, 1979.
\379\ ``An Act Relating to Fugitives in Saint Lucia from the
criminal Law of other States and to fugitives from the Criminal Law of
Saint Lucia in other States'' of July 28, 1986 (hereinafter ``the
Extradition Act 1986''). The key sections of the Extradition Act which
are germane to the interpretation and implementation of the Treaty are
discussed in more detail in this Technical Analysis. The Saint Lucia
delegation stated that in general in Saint Lucia treaties do not take
priority over statutes, and that the courts are bound by the Act,
though the Government is bound by the Treaty. However, the application
of Saint Lucia's extradition law is ``subject to such limitations,
conditions, exceptions or qualifications as are necessary to give
effect to [the applicable extradition] Treaty,'' Section 38(2),
Extradition Act 1986, so Saint Lucia's delegation assured the United
States delegation that the terms of the Treaty would be given full
effect.
\380\ See Stanbrook and Stanbrook, Extradition: The Law and
Practice, 25-26 (1979).
\381\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 402 (1987); Blakesley, United States Jurisdiction
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology
1109 (1982).
\382\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\383\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our
policy of drawing no distinction between nationals of the United States
and those of other countries in extradition matters is underscored by
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of
State to extradite U.S. citizens pursuant to treaties that permit (but
do not require) surrender of citizens, if other requirements of the
Treaty have been met.
\384\ Similar provisions appear in almost all recent U.S.
extradition treaties. Section 6 of Saint Lucia's Extradition Act 1986
requires that extradition be denied if the crime is ``an offense of a
political character,'' but the delegations agreed that the two terms
are equivalent.
\385\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\386\ There are similar provisions in many U.S. extradition
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at
Kingston June 14, 1983, entered into force July 7, 1991; Article 5(4),
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article
4, US-Netherlands Extradition Treaty, signed at The Hague June 24,
1980, entered into force September 15, 1983 (TIAS 10733); and Article
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13,
1983, entered into force Dec. 15, 1984 (TIAS 10813).
\387\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert.
denied 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\388\ An example of such a crime is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal.
1988).
\389\ Similar provisions appear in many treaties, including Article
5 of the U.S.-Jordan Extradition Treaty, signed at Washington March 28,
1995, entered into force July 29, 1995.
\390\ Article IX(1), 1972 Treaty. A similar requirement is found in
Section 16(1)(b), Extradition Act 1986.
\391\ See Extradition Act 1980, Section 17(1).
\392\ 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
Section 476, comment b.
\393\ See, e.g., Spatola v. United States, 741 F.Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F. Supp. 976 (D. Vt. 1979).
\394\ Article VII(5), 1972 Treaty.
\395\ This provision is consistent with requirements imposed by
U.S. law. See Title 18, United States Code, Section 3190.
\396\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
\397\ Similar provisions appear in all recent U.S. extradition
treaties.
\398\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979)
\399\ Title 18, United States Code, Section 3188.
\400\ Jimenez v. United States District Court, 84 S. Ct. 14, 11
L.Ed 2d 30 (1963)(decided by Goldberg, J., in chambers). See also
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713
F. 2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th
Cir. 1978).
\401\ Section 31, Extradition Act 1986.
\402\ Under United States law and practice, the Secretary of State
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D.
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\403\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 931 F.2d 977 (11th Cir. 1991).
\404\ Section 24, Extradition Act 1986.
\405\ Similar provisions are found in all recent U.S. extradition
treaties.
\406\ In the United States, the Secretary of State has the
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp.
1195, 1199 (D.D.C. 1979). For Saint Lucia, it is the Attorney-General.
See Section 6(2)(b)(iii), Extradition Act 1986.
\407\ Thus, the provision is consistent with the provisions of all
recent U.S. extradition treaties.
\408\ Cf. Article 16, US-Netherlands Treaty, supra note 14.
\409\ A similar provision is in all recent U.S. extradition
treaties.
\410\ See Article 20, U.S.-Jordan Extradition Treaty, supra note
15; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered
into force September 10, 1997; Article 18, U.S.-Philippines Extradition
Treaty, signed at Manila Nov. 13, 1994, entered into force November 22,
1996; Article 21, U.S.-Hungary Extradition Treaty, signed at Budapest
Dec. 1, 1994, entered into force March 18, 1997.
\411\ Extradition between the United States and Luxembourg is
governed by the Treaty on Extradition signed by the two nations at
Berlin on October 29, 1883, and the Supplementary Extradition
Convention signed at Luxembourg on April 24, 1935.
\412\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\413\ 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. & Criminology 1109 (1982).
\414\ See, e.g., Article 4, U.S.-Japan Extradition Treaty, signed
March 3, 1978, entered into force March 26, 1980 (31 UST 892, TIAS
9625); Article 6, U.S.-Netherlands Extradition Treaty, signed June 24,
1980, entered into force September 15, 1983 (TIAS 10733).
\415\ United States policy of drawing no distinction between United
States nationals and others in extradition matters is underscored by
Title 18, United States Code, Section 3196, which 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 provisions of the treaty have been met.
\416\ See, e.g., Article 8, U.S.-Costa Rica Extradition Treaty,
signed December 4, 1982, entered into force October 11, 1991; Article
3, U.S.-Hungary Extradition Treaty, signed Dec. 1, 1994; U.S.-Mexico
Extradition Treaty, signed May 4, 1978, entered into force January 25,
1980 (31 UST 5059, TIAS 9656).
\417\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\418\ There are similar provisions in many recent treaties. See
Article 4(c), U.S.-Ireland Extradition Treaty, signed July 13, 1983,
entered into force December 15, 1984 (TIAS 10813); Article 3(3), U.S.-
Jamaica Extradition Treaty, signed June 14, 1983, entered into force
July 7, 1991; Article 4, U.S.-Netherlands Extradition Treaty, signed
June 24, 1980, entered into force September 15, 1983 (TIAS 10733);
Article 5(4), U.S.-Spain Extradition Treaty, signed May 29, 1970,
entered into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245).
\419\ 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).
\420\ An example of such a crime is desertion. Matter of Suarez-
Mason, 694 F. Supp. 676, 703 (N.D. Cal. 1988).
\421\ See, e.g., Article 7, U.S.-Hungary Extradition Treaty, signed
December 1, 1994; Article 6, U.S.-Ireland Extradition Treaty, signed
July 13, 1983, entered into force December 15, 1984, (TIAS 10813);
Article 7, U.S.-Netherlands Extradition Treaty, signed June 24, 1980,
entered into force September 15, 1983 (TIAS 10733).
\422\ U.S.-Netherlands Extradition Treaty, signed June 24, 1980,
entered into force September 15, 1983 (TIAS 10733); U.S.-Belgium
Extradition Treaty, signed April 27, 1987, entered into force September
2, 1997.
\423\ Article 6, U.S.-Argentina Extradition Treaty, signed January
21, 1972, entered into force September 15, 1972 (23 UST 3501, TIAS
7510); Article 5, U.S.-Canada Extradition Treaty, signed December 3,
1971, entered into force March 22, 1976 (27 UST 983, TIAS 8237);
Article 6, U.S.-Uruguay Extradition Treaty, signed April 3, 1973,
entered into force April 11, 1984, (TIAS 10850).
\424\ Courts applying Title 18, United States Code, Section 3184,
long have required probable cause for international extradition.
Restatement (Third) of the Foreign Relations Law of the United States,
Sec. 476, comment b (1987).
\425\ See 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).
\426\ See, e.g., Article 10, U.S.-Costa Rica Extradition Treaty,
signed December 4, 1982, entered into force October 11, 1991; Article
11, U.S.-Italy Extradition Treaty, signed October 13, 1983, entered
into force September 24, 1984 (TIAS 10837).
\427\ Title 18, United States Code, Section 3190.
\428\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
\429\ 18 U.S.C. Sec. 3188.
\430\ See Jimenez v. U.S. District Court, 84 S. Ct. 14 (1963)
(decided by Goldberg, J., in chambers); see also Liberto v. Emery, 724
F.2d 23 (2d Cir. 1983); In re United States, 713 F.2d 105 (5th Cir.
1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
\431\ Under United States law and practice, the Secretary of State
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass.
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
\432\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\433\ 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).
\434\ See, e.g., Article 19, U.S.-Belgium Extradition Treaty,
signed April 9, 1987; Article 21, U.S.-Hungary Extradition Treaty,
December 1, 1994.
\435\ 31 U.S.T. 5059; TIAS 9656.
\436\ For instance, clauses similar to this Protocol's provisions
on temporary surrender are found in Art. 15, U.S.-Switzerland
Extradition Treaty, signed Nov. 14, 1990, entered into force Sept. 10,
1997; Art. 12, U.S.-Belgium Treaty, signed April 27, 1987, entered into
force Sept. 1, 1997; Art. 13, U.S.-Malaysia Treaty, signed August 3,
1995, entered into force June 2, 1997; Art. 14, U.S.-Hungary Treaty,
signed Dec. 1, 1994, entered into force March 18, 1997; Art. 11, U.S.-
Philippines Treaty, signed Nov. 13, 1994, entered into force Nov. 22,
1996; Art. 11, U.S.-Bolivia Treaty, signed June 27, 1995, entered into
force Nov. 21, 1996; Art. 13, U.S.-Jordan Treaty, signed March 28,
1995, entered into force July 29, 1995; and Art. 12, U.S.-Bahamas,
signed March 9, 1990, entered into force Sept. 22, 1994.
\437\ 1976 Treaty on the Execution of Penal Sentences, signed at
Mexico November 25, 1976; 28 UST 7399, TIAS 8718.
\438\ Extradition between the United States and the Republic of
Poland is currently governed by the Extradition Treaty and Accompanying
Protocol signed by the two nations at Warsaw on November 22, 1927, and
the Supplementary Extradition Treaty signed at Warsaw on April 5, 1935.
\439\ The 1969 Polish Code of Criminal Proceedings, Part XII,
Articles 523-538. In addition, Article 118 of the Polish Criminal Code
of 1969 states: ``A Polish citizen may not be extradited to another
state,'' and Article 110 of the same states: ``An alien may not be
extradited to another state if he enjoys the right to asylum.''
\440\ See Title 21, United States Code, Section 848.
\441\ See generally Title 18 and Title 31 of the United States
Code.
\442\ See Title 18, United States Code, Sections 1961-68.
\443\ 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. & Criminology 1109 (1982).
\444\ For example, Poland can prosecute its citizens for offenses
committed outside Poland.
\445\ See, e.g., Article III, Protocol Amending U.S.-Australia
Extradition Treaty, signed Sept. 4, 1990; Article 1, Protocol Amending
U.S.-Canada Extradition Treaty, signed Jan. 11, 1988; Article 2, U.S.-
Hungary Extradition Treaty, signed Dec. 1, 1994.
\446\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\447\ United States policy of drawing no distinction between United
States nationals and others in extradition matters is underscored by
Title 18, United States Code, Section 3196, which 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 provisions of the treaty have been met.
\448\ See, e.g., Article 8, U.S.-Costa Rica Extradition Treaty,
signed December 4, 1982, entered into force October 11, 1991; Article
9, U.S.-Mexico Extradition Treaty, signed May 4, 1978, entered into
force January 25, 1980; and Article 3, U.S.-Hungary Extradition Treaty,
signed Dec. 1, 1994.
\449\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\450\ There are similar provisions in many U.S. extradition
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at
Kingston June 14, 1983, entered into force Jul 7, 1991; Article 5(4),
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article
4, US-Netherlands Extradition Treaty, signed at The Hague June 24,
1980, entered into force September 15, 1983 (TIAS 10733); and Article
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13,
1983, entered into force Dec. 15, 1984 (TIAS 10813).
\451\ 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).
\452\ An example of such a crime is desertion. Matter of Suarez-
Mason, 694 F. Supp. 676, 703 (N.D. Cal. 1988).
\453\ See, e.g., Article 7, U.S.-Hungary Extradition Treaty, signed
Dec. 1, 1994; Article 6, U.S.-Ireland Extradition Treaty, signed July
13, 1983; Article 7, U.S.-Netherlands Extradition Treaty, signed June
24, 1980.
\454\ Courts applying Title 18, United States Code, Section 3184,
long have required probable cause for international extradition.
Restatement (Third) of the Foreign Relations Law of the United States,
Sec. 476, comment b (1987).
\455\ See Spatola v. United States, 741 F. Supp 362, 374 (E.D.N.Y.
1990), aff'd, 925 F. 2d 615 (2d Cir. 1991); U.S. v. Clark, 470 F. Supp.
976 (D. VT. 1979).
\456\ This provision is consistent with requirements imposed by
U.S. law. See Title 18, United States Code, Section 3190.
\457\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
\458\ See, e.g., Article 10, U.S.-Colombia Extradition Treaty,
signed September 14, 1979, entered into force March 4, 1982; Article
10, U.S.-Costa Rica Extradition Treaty, signed December 4, 1982,
entered into force October 11, 1991; Article 11, U.S.-Italy Extradition
Treaty, signed October 13, 1983, entered into force September 24, 1984.
\459\ 18 U.S.C. Sec. 3188.
\460\ See Jimenez v. U.S. District Court, 84 S. Ct. 14 (1963)
(decided by Goldberg, J., in chambers); see also Liberto v. Emery, 724
F.2d 23 (2d Cir. 1983); In re United States, 713 F.2d 105 (5th Cir.
1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
\461\ Under United States law and practice, the Secretary of State
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass.
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
\462\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\463\ In the United States, the Secretary of State has the
authority to consent to a waiver of the rule of speciality. See
Berenguer v. Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979).
\464\ See Article 20, U.S.-Jordan Extradition Treaty, signed at
Washington March 28, 1995, entered into force July 29, 1995; Article
19, U.S.-Belgium Extradition Treaty, signed at Brussels April 27, 1987,
entered into force September 1, 1997; Article 24, U.S.-Switzerland
Extradition Treaty, signed at Bern Nov. 14, 1990, entered into force
September 10, 1997; Article 18, U.S.-Philippines Extradition Treaty,
signed at Manila Nov. 13, 1994, entered into force November 22, 1996;
Article 21, U.S.-Hungary Extradition Treaty, signed at Budapest Dec. 1,
1994, entered into force March 18, 1997.
\465\ Extradition between the U.S. and Trinidad and Tobago is
governed by the Treaty for the Mutual Extradition of Criminals between
the United States and Great Britain (hereinafter the ``1931 Treaty''),
signed at London December 22, 1931, entered into force June 24, 1935,
47 Stat. 2122; TS 849, which continued in force after Trinidad became
an independent nation on August 31, 1962.
\466\ Republic of Trinidad and Tobago, Act No. 36 of 1985,
Extradition (Commonwealth and Foreign Territories) Act hereinafter
``the Extradition Act 1985''). The key sections of the Extradition Act
1985 that are germane to the interpretation and implementation of the
Treaty are discussed in more detail in this Technical Analysis. The
Trinidad delegation stated that in Trinidad treaties do not take
priority over statutes, recognized that their extradition law would
have to be amended to avoid conflict with the Treaty, and promised to
take such steps as are necessary to effectively carry out the
obligations in this Treaty.
\467\ See Stanbrook and Stanbrook, Extradition: The Law and
Practice 25-26 (1979).
\468\ See, e.g., 21 U.S.C. Sec. 848.
\469\ See 18 U.S.C. Sec. Sec. 1961-68.
\470\ See 18 U.S.C Sec. 1341.
\471\ See 18 U.S.C. Sec. 2314.
\472\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 402 (1987); Blakesley, United States Jurisdiction
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology
1109 (1982).
\473\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\474\ 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 United States nationals and
others in extradition matters is underscored by Title 18, United States
Code, Section 3196, which 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 have been met. 18 U.S.C. Sec. 3196.
\475\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\476\ There are similar provisions in many recent U.S. extradition
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at
Kingston June 14, 1983, entered into force July 7, 1991; Article 5(4),
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article
4, US-Netherlands Extradition Treaty, signed at The Hague June 24,
1980, entered into force September 15, 1983 (TIAS 10733); and Article
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13,
1983, entered into force Dec. 15, 1984 (TIAS 10813).
\477\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert.
denied, 454 U.S. 894 (1981); Koskotas v. Roche, 740 F. Supp. 904, 916
(D. Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
\478\ An example of such a crime is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal.
1988).
\479\ Similar provisions appear in many treaties, including Article
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March
28, 1995, entered into force July 29, 1995.
\480\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
\481\ See Extradition Act 1980, Section 17(1).
\482\ 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
Section 476, comment b.
\483\ 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).
\484\ See Section 15, Extradition Act 1985.
\485\ This provision is consistent with requirements imposed by
U.S. law. See Title 18, United States Code, Section 3190.
\486\ Clark, 470 F. Supp. at 976.
\487\ 18 U.S.C. Sec. 3188.
\488\ See Jimenez v. U.S. District Court, 84 S. Ct. 14 (1963)
(decided by Goldberg, J., in chambers); see also Liberto v. Emery, 724
F.2d 23 (2d Cir. 1983); In Re United States, 713 F.2d 105 (5th Cir.
1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
\489\ Extradition Act 1985, Section 17.
\490\ Under United States law and practice, the Secretary of State
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass.
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
\491\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\492\ Extradition Law of 1985, Section 16(5).
\493\ 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).
\494\ Cf. Article 16, US-Netherlands Extradition Treaty, signed at
the Hague June 24, 1980, entered into force September 15, 1983 (TIAS
10733).
\495\ See Article 20, U.S.-Jordan Extradition Treaty, done at
Washington, March 28, 1995, entered into force July 29, 1995; Article
19, U.S.-Belgium Extradition Treaty, signed at Brussels April 27, 1987,
entered into force September 1, 1997; Article 24, U.S.-Switzerland
Extradition Treaty, signed at Bern Nov. 14, 1990, entered into force
September 10, 1997 ; Article 18, U.S.-Philippines Extradition Treaty,
signed at Manila Nov. 13, 1994, entered into force November 22, 1996;
Article 21, U.S.-Hungary Extradition Treaty, signed at Budapest Dec. 1,
1994, entered into force March 18, 1997.
\496\ Extradition between the U.S. and St. Vincent and the
Grenadines is governed by the U.S.-U.K. Extradition Treaty (hereinafter
``the 1972 Treaty''), signed June 8, 1972, entered into force January
21, 1977 (28 UST 227, TIAS 8468), which continued in force after St.
Vincent and the Grenadines became an independent nation on October 27,
1979.
\497\ ``An Act to Make Provision for the return from Saint Vincent
and the Grenadines of persons found therein who are accused or, or have
been convicted of, offenses in other countries and whose return is
requested by such other countries and for matters relating thereto,''
of December 27, 1989 (hereinafter ``the Fugitive Offenders Act 1989'').
The key sections of the Fugitive Offenders Act 1989 that are germane to
the interpretation and implementation of the Treaty are discussed in
more detail in this Technical Analysis. The St. Vincent delegation
stated that in general in St. Vincent and the Grenadines treaties do
not take priority over statutes, and that its courts are bound by the
Act, though the Government is bound by the Treaty. The application of
St. Vincent's extradition law, however, is ``subject to any
limitations, conditions, exception or qualifications as are necessary
to give effect to [the] treaty. . .'' Section 39(2), Extradition Act
1981, so St. Vincent's delegation assured the United States delegation
that the terms of the Treaty would be given full effect.
\498\ See Stanbrook and Stanbrook, Extradition: The Law and
Practice, 25-26 (1979).
\499\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 402 (1987); Blakesley, United States Jurisdiction
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology
1109 (1982).
\500\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\501\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our
policy of drawing no distinction between nationals of the United States
and those of other countries in extradition matters is underscored by
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of
State to extradite U.S. citizens pursuant to treaties that permit (but
do not require) surrender of citizens, if other requirements of the
Treaty have been met.
\502\ Section 20, Fugitive Offenders Act 1989.
\503\ Similar provisions appear in almost all recent U.S.
extradition treaties. Section 7(1)(a) of the Fugitive Offenders Act
1989 requires that extradition be denied if the crime is ``an offense
of a political character,'' but the delegations agreed that the two
terms are equivalent.
\504\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\505\ There are similar provisions in many U.S. extradition
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at
Kingston June 14, 1983, entered into force July 7, 1991; Article 5(4),
US-Spain Extradition Treaty, signed at Madrid May 29, 1970, entered
into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Article
4, US-Netherlands Extradition Treaty, signed at The Hague June 24,
1980, entered into force September 15, 1983 (TIAS 10733); and Article
IV(c), US-Ireland Extradition Treaty, signed at Washington July 13,
1983, entered into force Dec. 15, 1984 (TIAS 10813).
\506\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert.
denied 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\507\ An example of such a crime is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal.
1988).
\508\ Similar provisions appear in many treaties, including Article
5 of the U.S.-Jordan Extradition Treaty, signed at Washington, March
28, 1995, entered into force July 29, 1995.
\509\ Article IX(1), 1972 Treaty. A similar requirement is found in
Section 12(4), Fugitive Offenders Act 1989.
\510\ See Extradition Act 1980, Section 17(1).
\511\ 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
Section 476, comment b.
\512\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F. Supp. 976 (D. Vt. 1979).
\513\ See Article VII(5) of the 1972 Treaty.
\514\ This provision is consistent with requirements imposed by
U.S. law. See Title 18, United States Code, Section 3190.
\515\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
\516\ Similar provisions appear in all recent U.S. extradition
treaties. The topic of provisional arrest is dealt with in section 11,
Fugitive Offenders Act 1989.
\517\ This is intended to provide more specificity than Section 11
of the Fugitive Offenders Act 1989, which states that when a magistrate
in Saint Vincent and the Grenadines has ordered a provisional arrest
the magistrate may fix a reasonable period (of which the court shall
give notice to the Governor General) after which [the fugitive] will be
discharged. . . .``
\518\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979)
\519\ Title 18, United States Code, Section 3188.
\520\ Jimenez v. United States District Court, 84 S. Ct. 14, 11
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th
Cir. 1978).
\521\ Section 17, Fugitive Offenders Act 1989.
\522\ Thus, the treaty is consistent with Section 18(1) of the
Fugitive Offenders Act 1989 and provides more flexibility than the
Article VI of the 1972 Treaty, which states that extradition ``shall
not be granted'' in these circumstances.
\523\ Under United States law and practice, the Secretary of State
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D.
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\524\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\525\ Section 25, Fugitive Offenders Act 1989.
\526\ Similar provisions are found in all recent U.S. extradition
treaties.
\527\ In the United States, the Secretary of State has the
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp.
1195, 1199 (D.D.C. 1979). For Saint Vincent and the Grenadines, it is
the Governor-General, pursuant to Section 7(3), Fugitive Offenders Act
1989.
\528\ Thus, the provision is consistent with the provisions of all
recent U.S. extradition treaties.
\529\ A similar provision is found in Section 13, Fugitive
Offenders Act 1989.
\530\ Cf. Article 16, US-Netherlands Treaty, supra note 11.
\531\ A similar provision is in all recent U.S. extradition
treaties.
\532\ See Article 20, U.S.-Jordan Extradition Treaty, supra note
14; Article 19, U.S.-Belgium Extradition Treaty, signed at Brussels
April 27, 1987, entered into force September 1, 1997; Article 24, U.S.-
Switzerland Extradition Treaty, signed at Bern Nov. 14, 1990, entered
into force September 10, 1997 ; Article 18, U.S.-Philippines
Extradition Treaty, signed at Manila Nov. 13, 1994, entered into force
November 22, 1996; Article 21, U.S.-Hungary Extradition Treaty, signed
at Budapest Dec. 1, 1994, entered into force March 18, 1997.
\533\ Extradition between the U.S. and Zimbabwe was governed by the
Treaty for the Mutual Extradition of Criminals between the United
States and Great Britain, signed at London December 22, 1931, entered
into force June 24, 1935, 47 Stat. 2122, TS 849, from 1935 until April
18, 1980, when Zimbabwe declared its independence from the United
Kingdom.
\534\ Zimbabwe Extradition Act 1982 (hereinafter ``the Extradition
Act 1982''), as amended by the Extradition Amendment Act 1990 and the
Extradition Amendment (No. 2) Act, 1990. The key sections of the
Extradition Act 1982 that are germane to the interpretation and
implementation of the Treaty are discussed in more detail in this
Technical Analysis. The Zimbabwe delegation told the United States that
in case of conflict between the treaty and internal Zimbabwe law
Zimbabwe courts would apply the law. There are only minor differences
between the Treaty and the Extradition Act 1982, however, and it is
expected that Zimbabwe officials will take the necessary legal steps to
direct, under Sections 3 and 13 of the Extradition Act 1982, that the
Treaty have the force of law in Zimbabwe.
\535\ See, Stanbrook and Stanbrook, Extradition: The Law and
Practice, 25-26 (1979).
\536\ See Section 2, Extradition Amendment (No. 2) of 1990.
\537\ Other types of economic activity that may have criminal
ramifications, such as violations of the Sherman Antitrust Act, may not
be considered criminal under Zimbabwe's laws, which has no counterpart
legislation. Also, Zimbabwe's securities markets are not yet regulated
by Government, so violations of our Securities and Exchange Act or
other securities regulations may not have specific counterpart offenses
under Zimbabwe law. However, extradition may be granted nevertheless if
the substantive conduct alleged to have been committed would amount to
fraud or other prohibited conduct under Zimbabwe law.
\538\ See Title 31, U.S. Code, Sections 321, 5311-5314, 5316- 5322.
\539\ Restatement (Third) of the Foreign Relations Law of the
United States Sec. 402 (1987); Blakesley, United States Jurisdiction
over Extraterritorial Crime, 73 Journal of Criminal Law and Criminology
1109 (1982).
\540\ See Article 2, U.S.-Bolivia Extradition Treaty, signed at La
Paz June 27, 1995, entered into force November 21, 1996.
\541\ See generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our
policy of drawing no distinction between nationals of the United States
and those of other countries in extradition matters is underscored by
Title 18, U.S. Code, Section 3196, which authorizes the Secretary of
State to extradite U.S. citizens pursuant to treaties that permit (but
do not require) surrender of citizens, if other requirements of the
Treaty have been met.
\542\ See Section 3(2)(b), Extradition Act 1982.
\543\ Similar provisions appear in all recent U.S. extradition
treaties. Section 15(b), Extradition Act 1982, provides that
extradition shall be denied if the crime is ``an offense of a political
character.'' The Zimbabwe delegation assured the United States that
this is identical to the political offense defense.
\544\ Done at Vienna December 20, 1988, entered into force November
11, 1990.
\545\ There are similar provisions in many U.S. extradition
treaties. See Article III(3), US-Jamaica Extradition Treaty, signed at
Kingston June 14, 1983, and entered into force July 7, 1991; Article
5(4), US-Spain Extradition Treaty, signed at Madrid May 29, 1970,
entered into force June 16, 1971 (22 UST 737, TIAS 7136, 796 UNTS 245);
Article 4, US-Netherlands Extradition Treaty, signed at The Hague June
24, 1980, entered into force September 15, 1983 (TIAS 10733); and
Article IV(c), US-Ireland Extradition Treaty, signed at Washington July
13, 1983, entered into force Dec. 15, 1984 (TIAS 10813).
\546\ See Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert.
denied 454 U.S. 894 (1981); Koskotos v. Roche, 740 F. Supp. 904, 916
(D. Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\547\ An example of such a crime is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal.
1988).
\548\ Similar provisions appear in many treaties, including Article
5 of the U.S.-Jordan Extradition Treaty, signed at Washington March 28,
1995, entered into force July 29, 1995.
\549\ This language is similar to Article 8(3)(b) of the United
States' extradition treaty with the Bahamas.
\550\ Extradition Act 1982, Section 4(2)(c); see also Section
17(1)(c).
\551\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F. Supp. 976 (D. Vt. 1979).
\552\ Title 18, United States Code, Section 3190.
\553\ Similar provisions appear in all recent U.S. extradition
treaties. The topic of provisional arrest is dealt with in Sections 12
and 25 of Zimbabwe's Extradition Act 1982.
\554\ Cf. United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).
\555\ Extradition Act of 1982, Section 12(6).
\556\ Title 18, United States Code, Section 3188.
\557\ Jimenez v. United States District Court, 84 S. Ct. 14, 11
L.Ed 2d 30 (1963)(decided by Goldberg, J., in chambers). See also
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713
F. 2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th
Cir. 1978).
\558\ Section 9(2), Extradition Act 1982. The fugitive may be
released if the foreign authorities do not take custody within 15 days
of the date set by the Minister.
\559\ Under United States law and practice, the Secretary of State
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D.
Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\560\ Thus, this provision is consistent with Section 28,
Extradition Act of 1982.
\561\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
\562\ Extradition Act of 1982, Section 29.
\563\ Similar provisions are found in all recent U.S. extradition
treaties, and in the Extradition Act 1982, Sections 30-31.
\564\ In the U.S., the Secretary of State has the authority to
grant such consent. See Berenguer v. Vance, 473 F. Supp. 1195, 1199
(D.D.C. 1979). In Zimbabwe, the Minister of Home Affairs has such
authority.
\565\ Thus, the provision is consistent with the provisions of all
recent U.S. extradition treaties.
\566\ A similar provision is in all recent U.S. extradition
treaties, and is authorized by Section 23, Extradition Act 1982.
\567\ This provision supersedes the contrary provision in Title 18,
United States Code, Section 3195.
\568\ See, e.g., Article 19, U.S.-Belgium Extradition Treaty,
signed at Brussels April 27, 1987, entered into force September 1,
1997.