[Senate Treaty Document 107-6]
[From the U.S. Government Publishing Office]
107th Congress Treaty Doc.
SENATE
2d Session 107-6
_______________________________________________________________________
EXTRADITION TREATY WITH PERU
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE
REPUBLIC OF PERU, SIGNED AT LIMA ON JULY 26, 2001
May 8, 2002.--Treaty was read the first time, and together with the
accompanying papers, referred to the Committee on Foreign Relations and
ordered to be printed for the use of the Senate
__________
U.S. GOVERNMENT PRINTING OFFICE
99-118 DTP WASHINGTON : 2002
LETTER OF TRANSMITTAL
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The White House, May 8, 2002.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification, I transmit herewith the Extradition
Treaty Between the United States of America and the Republic of
Peru, signed at Lima on July 26, 2001.
In addition, I transmit for the information of the Senate,
the report of the Department of State with respect to the
Treaty. As the report explains, the Treaty will not require
implementing legislation.
The provisions in this Treaty follow generally the form and
content of modern extradition treaties recently concluded by
the United States and will replace the outdated extradition
treaty in force between the two countries signed in 1899. The
Treaty will, upon entry into force, enhance cooperation between
the law enforcement communities of the two countries. It will
make a significant contribution to international law
enforcement efforts against serious offenses, including
terrorism, organized crime, and drug-trafficking.
I recommend that the Senate give early and favorable
consideration to the Treaty and give its advice and consent to
ratification.
George W. Bush.
LETTER OF SUBMITTAL
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April 20, 2002.
The President: I have the honor to submit to you the
Extradition Treaty Between the United States of America and the
Republic of Peru, signed at Lima on July 26, 2001. Upon its
entry into force, the Treaty would replace the outdated
extradition treaty now in force between the two countries that
was signed in 1899. I recommend that the Treaty be transmitted
to the Senate for its advice and consent to ratification.
The Treaty follows generally the form and content of other
extradition treaties recently concluded by the United States.
The Treaty represents a major step forward in U.S. efforts to
strengthen cooperation with countries in the region in
combating terrorism, organized crime, drug trafficking and
other offenses. It is an important part of a concerted effort
by the Department of State and the Department of Justice to
modernize the legal tools available for the extradition of
serious offenders.
The Treaty is designed to be self-executing and will not
require implementing legislation.
Article I obligates each Contracting State to extradite to
the other, pursuant to the provisions of the Treaty, persons
whom the authorities in the Requesting State have charged with,
found guilty of, or sentenced for an extraditable offense.
Article II concerns extraditable offenses. Article II(1)
defines an extraditable offense as one punishable under the
laws in both Contracting States by deprivation of liberty for a
maximum period of more than one year or by a more severe
penalty. Use of such a ``dual criminality'' clause rather than
a list of offenses covered by the Treaty, as in the 1899
extradition treaty, obviates the need to renegotiate or
supplement the Treaty as additional offenses become punishable
under the laws in both Contracting States.
Article II(2) defines an extraditable offense further as
including an attempt or conspiracy to commit, or association or
participation in the commission of, an offense described in
paragraph 1.
Additional flexibility is provided by Article II(3), which
provides that an offense shall be an extraditable offense
regardless of (a) whether the laws in the Contracting States
place the offense within a different category of offenses or
describe the offense by different terminology, so long as the
underlying conduct is criminal in both States; (b) whether the
offense is one for which the laws of the Requesting State
require the showing of such matters as interstate
transportation, or use of the mails or other facilities
affecting interstate or foreign commerce for the purpose of
establishing jurisdiction of its courts; or (c) where the
offense was committed.
Finally, Article II(4) provides that if extradition is
granted for one or more extraditable offenses, it shall also be
granted for any other offense specified in the request even if
that offense does not meet the minimum penalty requirement,
provided that all other extradition requirements are met.
Article III provides that extradition shall not be refused
on the ground that the person sought is a national of the
Requested State.
Article IV sets forth bases for the denial of extradition.
Paragraph 1 bars extradition: (a) if the person sought has been
tried and convicted or acquitted in the Requested State for the
same offense (but does not preclude extradition if the
competent authorities in the Requested State have decided not
to prosecute such person for the same acts or have decided to
discontinue criminal proceedings against the person for those
acts); or (b) if prosecution of the offense or execution of the
penalty is barred by lapse of time under the laws of the
Requested State.
As customary in extradition treaties, Article IV(2)
provides that extradition shall not be granted if the offense
for which extradition is requested constitutes a political
offense. It also specifies the following specific categories of
offenses that are not to be considered political offenses: (a)
a murder or other violent crime against a Head of State of one
of the Contracting States, or a member of a Head of State's
family; (b) genocide, as described in the Convention on the
Prevention and Punishment of the Crime of Genocide, done at
Paris on December 9, 1948; (c) an offense for which both
Contracting States have the obligation pursuant to a
multilateral international agreement to extradite the person
sought or to submit the case to their competent authorities for
decision as to prosecution, including but not limited to
illicit drug trafficking and related offenses, as described in
the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, done at Vienna on
December 20, 1988; and offenses related to terrorism, as set
forth in multilateral international agreements to which both
Contracting States are parties (e.g., the Convention for the
Suppression of Unlawful Seizure of Aircraft, done at The Hague
on December 16, 1970); and (d) an attempt or conspiracy to
commit, or association or participation in the commission of,
any of the foregoing offenses.
Article IV(3) requires that extradition not be granted if
the executive authority of the Requested State determines that
the request was politically motivated.
Article IV(4) provides that the executive authority of the
Requested State may also refuse extradition for offenses under
military law which are not offenses under ordinary criminal law
(e.g., desertion).
Finally, under Article IV(5), the executive authority of
the Requested State may refuse extradition if the person sought
would be tried, or punished as the result of a trial, under
extraordinary criminal laws or procedures in the Requesting
State. This provision was included in the Treaty at the
instance of the U.S. delegation in response to concerns over
due process before special terrorism tribunals in Peru. Under
this paragraph, the executive authority of the Requested State
would have discretion to deny extradition if the person sought
would be or has been tried in a special terrorism tribunal and
there were no procedures in place to safeguard the due process
rights of the accused.
Article V concerns capital punishment. Under Article V,
when an offense for which extradition is sought is punishable
by death under the laws in the Requesting State but not under
the laws in the Requested State, the executive authority of the
Requested State may refuse extradition unless the Requesting
State provides an assurance that the person sought will not be
executed. The United States has agreed to similar formulations
in other modern extradition treaties (e.g., those with
Argentina, the Republic of Korea and India). In cases in which
such an assurance is provided, the death penalty shall not be
carried out, even if imposed by the courts in the Requesting
State. Article V(2) provides further that, except in instances
in which the death penalty applies, extradition shall not be
refused, nor conditions imposed, on the basis that the penalty
for the offense is greater in the Requesting State than in the
Requested State.
Article VI establishes the procedures and describes the
documents that are required to support a request for
extradition. All requests for extradition must be submitted
through the diplomatic channel. Among other requirements,
Article VI(3) provides that a request for the extradition of a
person sought for prosecution must be supported by such
evidence as would be sufficient to justify committal for trial
of the person if the offense had been committed in the
Requested State. Under Article VI(5), if the Requested State
requires additional evidence or information to enable it to
decide on the request for extradition, such evidence or
information shall be submitted to it within such time as that
State shall require.
Article VII requires that all documents submitted by the
Requesting State be accompanied by a translation into the
language of the Requested State and establishes the procedures
under which such documents shall be received and admitted as
evidence in the Requested State.
Article VIII sets forth procedures and describes the
information that is required for the provisional arrest and
detention of the person sought, in case of urgency, pending
presentation of the formal request for extradition. In
particular, Article VIII(4) provides that if the Requested
State's executive authority has not received the extradition
request and supporting documents required by Article VI within
sixty days from the date of the provisional arrest, the person
may be discharged from custody. Article VIII(5) explicitly
provides that such a discharge from custody shall not be an
obstacle to the person's re-arrest and extradition if the
formal extradition request is received later.
Article IX specifies the procedures governing a decision on
the extradition request and the surrender of the person sought.
It requires the Requested State to process the extradition
request in accordance with the procedures set forth in its law
and the Treaty, and to promptly notify the Requesting State,
through the diplomatic channel, of its decision regarding a
request. If extradition is granted, the Contracting States
shall agree on the time and place for the surrender of the
person sought. If the person sought is not removed from the
territory of the Requested State within the time period
prescribed by the law of that State, if any, the person may be
discharged from custody and the Requested State may thereafter
refuse extradition for the same offense. Article IX also
provides that if unforeseen circumstances prevent the surrender
of the person sought, the States shall agree on a new date,
consistent with the laws of the Requested State. If the request
is denied in whole or in part, Article IX(4) requires the
Requested State to provide an explanation of the reasons for
the denial and, upon request, copies of pertinent decisions.
Article X addresses deferred and temporary surrender. Under
Article X(1) if a person whose extradition is sought is being
prosecuted or is serving a sentence in the Requested State,
that State may postpone the extradition proceedings against, or
the surrender of, that person until its prosecution has been
concluded or the sentence has been served. Alternatively,
Article X(2) provides that in such circumstances the Requested
State may, in exceptional cases, temporarily surrender the
person to the Requesting State exclusively for the purpose of
prosecution. The person so surrendered is to be kept in custody
in the Requesting State and returned to the Requested State
after the conclusion of the proceedings against that person, on
conditions agreed between the Contracting States.
Article XI provides a non-exclusive list of factors to be
considered by the executive authority of the Requested State in
determining to which State to surrender a person whose
extradition is sought by more than one State.
Article XII provides that the Requested State may, to the
extent permitted under its law, seize and surrender to the
Requesting State all articles, documents and evidence connected
with the offense for which extradition is granted. Such items
may be surrendered even if the extradition cannot be carried
out due to the death, disappearance, or escape of the person
sought. Surrender of such items may be deferred for such time
as is deemed necessary for an investigation or proceeding in
the Requested State or may be made on condition that they be
returned to the Requested State as soon as practicable. Article
XII(3) provides that the rights of the Requested State or of
third parties in such items must be duly respected.
Article XIII sets forth the rule of specialty under
international law. Paragraph 1 provides, subject to specific
exceptions set forth in paragraph 3, that a person extradited
under the Treaty may not be detained, tried or punished in the
Requesting State except for any offense (a) for which
extradition was granted, or a differently denominated offense
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) committed after the extradition of
the person; or (c) for which the executive authority of the
Requested State consents to the person's detention, trial or
punishment. Article XIII (2) provides that a person extradited
under the Treaty may not be extradited to a third State for an
offense committed prior to surrender unless the surrendering
State consents. Under paragraph 3, these restrictions do not
apply if the person has left the jurisdiction of the State to
which surrendered and voluntarily returned or has had the
opportunity to leave and has not done so within ten days.
Article XIV permits surrender without further proceedings
if the person sought consents to be surrendered.
Article XV governs the transit through the territory of one
Contracting State of a person being surrendered to the other
Contracting State by a third country.
Article XVI contains provisions on representation and
expenses that are similar to those found in other modern U.S.
extradition treaties. Specifically, the Requested State is
required to advise, assist, appear in court on behalf of, and
represent the interests of the Requesting State in any
proceedings arising out of a request for extradition. The
Requested State also bears all expenses incurred in that State
by reason of the extradition proceedings, except that the
Requesting State pays expenses related to translation of
documents and the transportation to the Requesting State of the
person sought. Article XVI (3) specifies that neither
Contracting State shall make any pecuniary claim against the
other arising out of the arrest, detention, custody,
examination, or surrender of persons under the Treaty.
Article XVII provides that the U.S. Department of Justice
and the Peruvian Ministry of Justice may consult with each
other directly in connection with the processing of individual
cases and in furtherance of maintaining and improving
procedures for the implementation of the Treaty.
Article XVIII, like the parallel provisions in almost all
recent U.S. extradition treaties, makes the Treaty applicable
to extradition requests pending on the date of its entry into
force and to subsequent extradition requests, even if the
crimes were committed prior to the date of entry into force, so
long as they constituted offenses under the laws in both
Contracting States at the time of their commission.
Article XIX contains final clauses dealing with the
Treaty's entry into force and termination. It provides that the
Treaty is subject to ratification and that the Treaty shall
enter into force upon the exchange of instruments of
ratification, which is to take place as soon as possible.
Either State may terminate the Treaty with six months written
notice to the other State. Article XIX (2) provides that, upon
entry into force of the Treaty, the Treaty on Extradition
Between the United States of America and the Republic of Peru,
signed at Lima November 28, 1899, and the related agreement of
February 15, 1990, done at Cartagena, Colombia, shall become
null and void.
A Technical Analysis explaining in detail the provisions of
the Treaty is being prepared by the U.S. negotiating
delegation, consisting of representatives from the Departments
of State and Justice, and will be transmitted separately to the
Senate Committee on Foreign Relations.
The Department of Justice joins the Department of State in
favoring approval of this Treaty by the Senate at the earliest
possible date.
Respectfully submitted,
Colin L. Powell.