[Senate Executive Report 115-5]
[From the U.S. Government Publishing Office]
115th Congress } { Exec. Rept.
SENATE
2d Session } { 115-5
======================================================================
EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF
AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF KOSOVO
_______
June 7, 2018.--Ordered to be printed
_______
Mr. Corker, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 115-2]
The Committee on Foreign Relations, to which was referred
the Extradition Treaty Between the Government of the United
States of America and the Government of the Republic of Kosovo,
signed at Pristina on March 29, 2016 (Treaty Doc. 115-2),
having considered the same, reports favorably thereon with one
declaration and recommends that the Senate give its advice and
consent to the ratification thereof as set forth in this report
and the accompanying resolution of advice and consent to
ratification.
CONTENTS
Page
I. Purpose..........................................................1
II. Summary and Discussion of Key Provisions.........................1
III. Entry into Force and Termination.................................2
IV. Committee Action.................................................3
V. Committee Comments...............................................3
VI. Explanation of Extradition Treaty with Kosovo....................3
VII. Text of Resolution of Advice and Consent to Ratification........10
I. Purpose
The purpose of the Extradition Treaty with the Republic of
Kosovo (hereafter ``the Treaty'') is to impose mutual
obligations to extradite fugitives at the request of a party
subject to conditions set forth in the Treaty.
II. Summary and Discussion of Key Provisions
The United States is currently a party to over 100
bilateral extradition treaties, including a treaty with the
Kingdom of Servia which was signed on October 25, 1901, and
entered into force on June 12, 1902 (hereafter the ``1901
treaty''). The 1901 treaty applies to the Republic of Kosovo as
a successor state to the former Socialist Federal Republic of
Yugoslavia.
The treaty before the Senate is designed to replace, and
thereby modernize, the century-old extradition treaty with the
Kingdom of Servia. It was signed in March 2016 and submitted to
the Senate on January 17, 2017. In general, the Treaty follows
a form used in several other bilateral extradition treaties
approved by the Senate in recent years. It contains two
important features which are not in the 1901 treaty. First, the
Treaty contains a ``dual criminality'' provision, which
requires a party to extradite a fugitive whenever the offense
is punishable under the laws of both parties by deprivation of
liberty for a maximum period of more than one year. This
provision replaces the list of offenses specifically identified
in the 1901 treaty. This more flexible provision ensures that
newly-enacted criminal offenses are covered by the Treaty,
thereby obviating the need to amend it as offenses are
criminalized by the Parties.
Second, the Treaty provides for the extradition of
nationals. Specifically, Article 1 states that the extradition
obligations under the treaty ``shall apply regardless of
nationality, including with respect to the extradition of
nationals of the Requested State.'' This contrasts with Article
V of the 1901 treaty, which does not obligate a party to
extradite its own citizens or subjects. Many countries have,
historically, refused to extradite nationals.
The Treaty contains another provision worth noting.
Consistent with U.S. policy and practice in recent years, the
Treaty narrows the political offense exception. The political
offense exception (a long-standing exception in U.S.
extradition practice) bars extradition of an individual for
offenses of a ``political'' nature. The Treaty with Kosovo
retains the political offense exception in Article 3, but
provides that certain crimes shall not be considered political
offenses, including murder, serious sexual assault, kidnapping,
and offenses for which both parties have an obligation to
extradite under a multilateral agreement.
The Treaty contains a provision related to the death
penalty. Under Article 6, when extradition is sought for an
offense punishable by death in the Requesting State and is not
punishable by death in the Requested State, the Requested State
may refuse extradition unless the Requesting State provides an
assurance that the person sought for extradition will not be
executed. This provision is found in many U.S. extradition
treaties, as many treaty partners do not impose the death
penalty under their laws, and object to its application to
fugitives whom they extradite to the United States.
Finally, the terms of Article 15 Rule of Specialty clearly
bar onward extradition unless the Requested State consents to
the onward extradition or surrender.
III. Entry into Force and Termination
Under Article 21, the Treaty enters into force upon the
exchange of the instruments of ratification. Under Article 22,
either party may terminate the treaty on written notice;
termination will be effective six months after the date of such
notice.
IV. Committee Action
The committee reviewed the Treaty at a hearing on December
13, 2017, at which representatives of the Departments of State
and Justice testified. The committee considered the Treaty on
March 20, 2018, and ordered it favorably reported by voice
vote, with the recommendation that the Senate give its advice
and consent to the ratification of the Treaty subject to the
declaration set forth in the resolution of advice and consent
to ratification.
V. Committee Comments
The committee recommends favorably the Treaty with the
Republic of Kosovo. It modernizes a treaty that is over a
century old, and provides a more flexible ``dual criminality''
provision which will incorporate a broader range of criminal
offenses than is covered under the current treaty in place with
the Republic of Kosovo.
VI. Explanation of Extradition Treaty with Kosovo
What follows is a technical analysis of the Treaty prepared
by the Departments of State and Justice.
TECHNICAL ANALYSIS OF THE EXTRADITION TREATY BETWEEN THE GOVERNMENT OF
THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF
KOSOVO
The Extradition Treaty between the Government of the United
States and the Government of the Republic of Kosovo
(``Treaty'') replaces an outdated extradition treaty between
the United States of America and the Kingdom of Servia signed
in 1901.
The following is an article-by-article description of the
provisions of the Treaty:
Article 1--Obligation To Extradite
Article 1 obligates each State to extradite to the other
State persons sought by the Requesting State for prosecution or
for imposition or service of a sentence for an extraditable
offense. Article 1(2) establishes that extradition shall not be
refused based on the nationality of the person sought.
Article 2--Extraditable Offenses
Article 2 defines extraditable offenses. Under Article
2(1), an offense is extraditable if it is punishable under the
laws of both States by deprivation of liberty for a period of
more than one year or by a more severe penalty. This
formulation is consistent with the modern ``dual criminality''
approach. The new Treaty eliminates the requirement of the 1901
Treaty that the offense be among those listed in the Treaty.
The dual criminality formulation also obviates the need to
renegotiate or supplement the Treaty as additional offenses
become punishable under the laws of both States. It ensures
comprehensive coverage of criminal conduct for which
extradition may be sought.
Article 2(2) is designed to include within the realm of
extraditable offenses an attempt or conspiracy to commit, or
participation in the commission of, offenses described in
Article 2(1). By using the broad term ``participation,'' the
Treaty covers such offenses as aiding, abetting, counseling, or
procuring the commission of an offense, as well as being an
accessory to an offense, at whatever stage of development of
the criminal conduct and regardless of the alleged offender's
degree of involvement.
Additionally, Article 2(3) identifies a number of
situations in which an offense will be extraditable despite
potential differences in the criminal laws of both States. For
instance, an offense shall be extraditable whether or not the
laws of the Requesting and Requested States place the acts
constituting the offense within the same category of offenses
or describe the offense by the same terminology. This provision
also makes explicit that an offense is extraditable even where
the evidence provided does not support the existence of certain
facts that are merely necessary to establish U.S. federal
jurisdiction, such as evidence of interstate transportation or
use of the mails or of other facilities affecting interstate or
foreign commerce. This clarifies an important issue for the
United States in requesting extradition for certain federal
crimes. In addition, an offense involving tax fraud or tax
evasion, customs duties, or import/export controls shall be
extraditable regardless of whether the Requested State provides
for the same sort of taxes, duties, or controls.
Article 2(4) addresses issues of territorial jurisdiction.
It specifies that where the Requesting State seeks extradition
for an offense that occurred outside its territory, the
Requested State shall grant extradition if the laws of the
Requested State would provide for punishment of the
extraterritorial offense in similar circumstances. If the
Requested State's laws would not provide for punishment of the
extraterritorial offense in similar circumstances, the
Requested State nonetheless retains discretion to grant
extradition provided the other requirements of the Treaty are
met.
Article 2(5) prohibits the Requested State from refusing
extradition for the sole reason that the offense was committed
on its own territory. The U.S. negotiating team proposed this
provision in order to satisfy a provision of Kosovo's domestic
law that permits extradition for offenses committed on Kosovo's
territory only when expressly required by an extradition treaty
or other binding international agreement. Kosovo has previously
refused to grant extradition to the United States on this basis
under the existing treaty.
Article 2(6) prescribes that if extradition is granted for
an extraditable offense, it shall also be granted for any other
offense specified in the request even if the latter offense is
punishable by a maximum of one year's deprivation of liberty or
less, provided that all other requirements for extradition are
met.
Article 2(7) provides that where the extradition request is
for service of a sentence of imprisonment for an extraditable
offense, the Requested State may only grant extradition if at
least four months imprisonment remains to be served.
Article 3--Political and Military Offenses
Article 3 establishes an exception for political and
military offenses. Article 3(1) states generally that
extradition shall not be granted if the offense for which
extradition is requested is a political offense.
Article 3(2), however, describes five categories of
offenses that shall not be considered political offenses. A
near identical list of these limitations was included in the
extradition treaties between the United States and Chile
(signed 2013) and the United States and the Dominican Republic
(signed 2015). The list of limitations in each of these most
recent treaties is slightly broader than similar lists that
appear in other modern treaties, including those with Hungary
(signed 1994), Poland (signed 1997), the United Kingdom (signed
2003), Bulgaria (signed 2007) and Romania (signed 2007). In
addition to offenses that involve the possession, placement,
use or threatened use of an explosive, incendiary, or
destructive device when such device is capable of endangering
life or causing substantial bodily harm or substantial property
damage, Article 3(2)(d) now also establishes that political
offenses cannot include offenses involving similarly serious
biological, chemical or radiological agents. Further, Article
3(2)(e) makes clear that conspiracy or attempt to commit non-
political offenses, or aiding or abetting another person who
commits or attempts to commit such offenses, also shall not be
considered political offenses. This slight narrowing of
extraditable offenses to exclude political offenses aligns with
a major priority of the United States to ensure that an
overbroad definition of ``political offense'' does not impede
the extradition of terrorists.
Notwithstanding Article 3(2), Article 3(3) provides that
extradition shall not be granted if the competent authority of
the Requested State determines that the request was politically
motivated.
Under Article 3(4), the executive authority of the
Requested State may refuse extradition for offenses under
military law that are not offenses under ordinary criminal law.
Desertion would be an example of such an offense.
Article 4--Prior Prosecution
Article 4(1) prohibits extradition in instances where a
person sought has been previously convicted or acquitted by the
Requested State for the offense for which extradition is
requested. Under Article 4(2), however, a person shall not be
considered to have been convicted or acquitted in the Requested
State when the authorities of the Requested State: (a) have
decided not to proceed against the person sought for the acts
for which extradition is requested; (b) have decided to
discontinue any criminal proceedings against the person for
those acts; or (c) are still investigating or proceeding
against the person sought for those acts.
Article 4(3) applies to circumstances where the Requested
State has not convicted or acquitted the person sought, but has
an international agreement with a third state for reciprocal
recognition and enforcement of criminal judgements. In such
cases, the Requested State may deny an extradition request if
the person sought has been convicted or acquitted in that third
state for the same crime for which extradition was requested.
Article 5--Lapse of Time
Article 5 provides that only the laws of the Requesting
State regarding lapse of time shall be considered for purposes
of deciding whether or not to grant extradition. In this
regard, the Requested State is bound by the statement of the
Requesting State that the statute of limitations has not
expired.
Article 6--Punishment
Article 6 addresses punishment. When an offense for which
extradition is sought is punishable by death under the laws of
the Requesting State but not under the laws of the Requested
State, the Requested State may refuse extradition unless the
Requesting State provides assurances that: (a) the death
penalty shall not be imposed on the person sought, or (b) the
death penalty, if imposed, shall not be carried out against the
person sought. If either condition is satisfied, the Requested
State must comply with the extradition request, and the
Requesting State must abide by its assurances.
Article 7--Extradition Procedures and Required Documents
Article 7 specifies the procedures and documents required
to support a request for extradition. Article 7(1) requires all
extradition requests to be submitted through the diplomatic
channel. Among several other requirements, Article 7(3)(c)
establishes that extradition requests must be supported by such
information as would provide a reasonable basis to believe that
the person sought committed the offense(s) for which
extradition is requested. Notably, this language is understood
as equivalent to the probable cause standard applied in U.S.
criminal law and applied by U.S. courts in determining whether
to certify to the Secretary of State that a fugitive's
extradition would be lawful under the applicable treaty and
U.S. law. Article 7(6) permits the submission of additional
information to enable the Requested State to decide on the
extradition request. Article 7(7) deals with circumstances
where the Requesting State is considering submitting
particularly sensitive information to support its request for
extradition. In such a case, if the Requesting State is not
satisfied that the Requested State can adequately protect the
sensitive information, the Requesting State must determine
whether the sensitive information should be submitted
nonetheless.
Article 8--Admissibility of Documents
Article 8 sets out the procedures for the certification and
admissibility of documents in extradition proceedings.
Article 9--Translation
Article 9 requires all documents submitted by the
Requesting State under the Treaty to be accompanied by an
official translation into a language of the Requested State,
unless otherwise agreed.
Article 10--Provisional Arrest
Article 10 provides that, in cases of urgency, the
Requesting State may request the provisional arrest of
fugitives and sets forth the procedures for making such a
request pending presentation of the formal extradition request.
Article 10(2) specifies the information that must accompany a
provisional arrest request. Article 10(3) provides that the
Requesting State shall be notified without delay of the date of
a provisional arrest or the reasons why the Requested State
cannot proceed with the request. Article 10(4) permits the
release of the person provisionally arrested if the executive
authority of the Requested State does not receive the formal
extradition request and supporting documents within 60 days of
the date on which the person was provisionally arrested.
Article 10(5) specifies that for the purposes of applying the
60-day time limitation in Article 10(4), receipt of the formal
extradition request and supporting documents by the embassy of
the Requested State located in the Requesting State constitutes
receipt by the executive authority of the Requested State.
Article 10(6) makes clear that the release of a person pursuant
to Article 10(4) does not prevent the person's re-arrest and
extradition if the Requested State receives the formal
extradition request and supporting documents at a later date.
Article 11--Decision and Surrender
Article 11 requires the Requested State to promptly notify
the Requesting State of its decision regarding an extradition
request. If the Requested State denies extradition, Article
11(2) requires the Requested State to explain the reasons for
denial. If the Requested State agrees to grant extradition,
Article 11(3) requires the Requested and Requesting States to
coordinate the date and place for surrendering the person
sought. Article 11(4) provides that if the person to be
surrendered is not removed from the territory of the Requested
State within the time prescribed by the Requested State's laws,
the Requested State may discharge the person sought from
custody and subsequently refuse extradition for the same
offense.
Article 12--Deferral of Extradition Proceedings and Deferred or
Temporary Surrender
Article 12 addresses deferred extradition proceedings as
well as deferred and temporary surrender of the person sought.
Under Article 12(1), if the person sought is being proceeded
against in the Requested State, the Requested State may defer
the extradition proceedings until its own proceedings have been
concluded. Article 12(2) addresses circumstances where
extradition proceedings have concluded and extradition has been
authorized, but the person sought is being proceeded against or
is serving a sentence in the Requested State. In such cases,
the Requested State may either defer the surrender of the
person sought or temporarily surrender the person to the
Requesting State for the purpose of prosecution. Article 12(3)
explains that if the Requested State elects to defer surrender,
it may detain the person sought until surrender. Under Article
12(4), however, if the Requested State elects to temporarily
surrender the person to the Requesting State, the Requesting
State must detain the temporarily surrendered person during
proceedings and return the person when proceedings conclude.
The person's return to the Requested State shall not require
any further extradition request or proceedings. Moreover, upon
return to the Requested State, the time a person served in the
temporary custody of the Requesting State may be deducted from
the remaining time to be served in the Requested State,
according to the laws of the Requested State.
Article 13--Requests for Extradition or Surrender Made by Several
States
Pursuant to Article 13, if the Requested State receives
extradition requests for the same person from the Requesting
State and from any other State or States, either for the same
offense or for different offenses, the executive authority of
the Requested State shall determine to which State, if any, it
will surrender that person. Article 13 requires the Requested
State to consider a list of non-exclusive factors when making
its decision.
Article 14--Seizure and Surrender of Items
Article 14 provides that, subject to certain conditions,
the Requested State may seize and surrender to the Requesting
State all items that are connected with the offense for which
extradition is sought or that may be required as evidence in
the Requesting State.
Article 15--Rule of Specialty
Article 15(1) sets forth the rule of specialty, which
prohibits a person extradited under the Treaty from being
detained, tried, or punished in the Requesting State, except
where the detention, trial, or punishment: (a) is for an
offense for which extradition was granted, or for a differently
denominated offense carrying the same or lesser penalty that is
based on the same facts as the offense for which extradition
was granted, provided such offense is extraditable or is a
lesser included offense; (b) is for an offense committed after
that person's extradition to the Requesting State; or (c)
occurs with the consent of the competent authority of the
Requested State. If the Requested State consents to the
person's detention, trial or punishment for a different
offense, the Requested State may require the Requesting State
to submit the documentation required under Article 7.
Similarly, Article 15(2) provides that a person extradited
under the Treaty may not be the subject of onward extradition
or surrender for any offense committed prior to extradition,
unless the Requested State consents. This provision would
preclude the Republic of Kosovo from transferring to a third
State or an international tribunal a fugitive that the United
States surrendered to the Republic of Kosovo, unless the United
States consents. Article 15(3), however, permits the Requesting
State to detain, try, punish, extradite, or surrender the same
person if that person: (a) leaves and voluntarily returns to
the Requesting State, or (b) chooses not to leave the
Requesting State within 20 days of the day that person is free
to leave. Article 15(4) provides that the rule of specialty
provisions in this Article do not apply if the person sought
waives extradition under Article 16(a).
Article 16--Waiver and Simplified Extradition
Article 16 allows the Requested State to expedite the
transfer of the person whose extradition is sought to the
Requesting State. If the person waives extradition, a judicial
officer may direct the person's transfer to the Requesting
State without further proceedings. If the person consents to
extradition or to a simplified extradition proceeding, the
Requested State may surrender the person as expeditiously as
possible.
Article 17--Transit
Article 17 allows either State to authorize transportation
through its territory of a person being extradited or otherwise
transferred to the other State by a third State or from the
other State to a third State for the purposes of prosecution,
imposition of a sentence, or service of a sentence. It also
specifies the procedures for requesting such transit and makes
clear that a person who is being transported pursuant to this
Article shall be detained during the period of transit. Under
Article 17(2), authorization is not required when the other
State only uses air transportation and no landing is scheduled
on the State's territory. Should an unscheduled landing occur,
however, the State may require submission of a formal transit
request within 96 hours; during that time, the State must take
all measures necessary to prevent the person being transferred
from absconding.
Article 18--Representation and Expenses
Article 18 requires the Requested State to advise, assist,
appear in court on behalf of, and represent the interests of,
the Requesting State in any proceedings arising out of an
extradition request. Additionally, the Requested State must
bear all expenses incurred in that State in connection with the
extradition proceedings, except for expenses related to
translation of documents and transportation of the person
surrendered.
Article 19--Consultation
Article 19 provides that the U.S. Department of Justice and
the Ministry of Justice of the Republic of Kosovo may consult
with each other directly in connection with individual cases
and in furtherance of efficient implementation of the Treaty.
Article 20--Application
Article 20 establishes that the Treaty applies to offenses
committed both before and after the date it enters into force.
Article 21--Ratification and Entry into Force
Article 21 notes that the Treaty is subject to ratification
and shall enter into force upon the exchange of the instruments
of ratification. Article 21(3) provides that, upon entry into
force, the Treaty will supersede the 1901 Treaty with respect
to all requests submitted on or after the date of ratification.
With respect to all pending requests made under the 1901
Treaty, subparagraphs (3) and (4) provide that the Treaty shall
supersede the 1901 Treaty, except that the provisions of the
1901 Treaty relating to required documents and the
admissibility and translation of documents shall apply if the
extradition request and supporting documents have already been
submitted to the Requested State at the time the Treaty enters
into force.
Article 22--Termination
Under Article 22, either State may terminate the Treaty by
giving written notice to the other State through the diplomatic
channel. The termination shall be effective six months after
the date of such notice.
VII. Text of Resolution of Advice and
Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION.
The Senate advises and consents to the ratification of the
Extradition Treaty Between the Government of the United States
of America and the Government of the Republic of Kosovo, signed
at Pristina on March 29, 2016 (Treaty Doc. 115-2), subject to
the declaration of section 2.
SEC. 2. DECLARATION.
The Senate's advice and consent under section 1 is subject
to the following declaration: The Treaty is self-executing.
[all]