[Senate Executive Report 107-12]
[From the U.S. Government Publishing Office]
107th Congress Exec. Rpt.
2nd Session SENATE 107-12
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EXTRADITION TREATY WITH PERU
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October 17, 2002.--Ordered to be printed
_______
Mr. Biden, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 107-6]
The Committee on Foreign Relations, to which was referred
the Extradition Treaty Between the United States of America and
the Republic of Peru, signed at Lima on July 26, 2001 (Treaty
Doc. 107-6), having considered the same, reports favorably
thereon with one understanding and one condition 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.................................3
IV. Committee Action.................................................3
V. Committee Comments...............................................3
VI. Explanation of Extradition Treaty with Peru......................4
VII. Text of Resolution of Advice and Consent to Ratification........13
I. Purpose
The purpose of the Extradition Treaty with Peru (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 Peru
which was signed in 1899, and entered into force in 1901 (31
Stat. 1921) (hereafter the ``1899 treaty'').
The treaty before the Senate is designed to replace, and
thereby modernize, the century-old extradition treaty with
Peru. It was signed in July 2001 and submitted to the Senate on
May 8, 2002.
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
1899 treaty.
First, the Treaty contains a ``dual criminality'' clause
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 1899 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 extradition of nationals.
Specifically, Article III states that extradition ``shall not
be refused on the ground that the person sought is a national
of the Requested State.'' This contrasts with Article V of the
1899 treaty, which does not obligate a party to extradite its
nationals. Many countries of Latin America have, historically,
refused to extradite nationals. The United States, by contrast,
does extradite its nationals, and has long attempted to
convince extradition partners to do likewise.
The Treaty contains several other provisions worth noting.
Consistent with U.S. policy and practice in recent years,
the Treaty narrows the political offense exception. The
political offense exception (an exception of long-standing in
U.S. extradition practice) bars extradition of an individual
for offenses of a ``political'' nature. The Treaty with Peru
retains the political offense exception in Article IV(2), but
provides that certain crimes shall not be considered political
offenses, including murder or other crimes of violence against
a Head of State (or his family) of either party, genocide, or
offenses for which both parties have an obligation to extradite
under a multilateral agreement, such as illicit drug
trafficking or terrorism offenses.
The Treaty contains a provision, in Article IV(5), allowing
the executive authority of the Requested State to refuse
extradition if the person sought would be tried or punished
under ``extraordinary criminal laws or procedures in the
Requesting State.'' This provision was included at the
insistence of the United States, based on concerns at the time
of the negotiations over inadequate due process in cases before
Peru's special terrorism tribunals. Negotiators for the two
parties understood that the language is paragraph 5 was
specifically intended to refer to proceedings before these
tribunals. According to testimony received from the State
Department, these concerns have been ``assuaged considerably''
since the negotiations, due to the departure of former
President Fujimori and subsequent reforms to the Peruvian legal
system.
Finally, the Treaty contains a provision related to the
death penalty. Under Article V, 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.
III. Entry Into Force and Termination
Under Article XIX, the Treaty enters into force upon the
exchange of the instruments of ratification. 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 public hearing on
September 19, 2002, receiving testimony from representatives of
the Departments of State and Justice (S. Hrg. 107-721). The
Committee considered the Treaty on October 8, 2002, 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 understanding and the condition
set forth in the resolution of advice and consent to
ratification.
V. Committee Comments
The Committee recommends favorably the Treaty with Peru. 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 with Peru.
According to the State Department's most recent human
rights report, ``confidence among the Peruvian public in the
judiciary is low,'' and that although the Constitution of Peru
provides for an independent judiciary, in practice the
judiciary ``has been subject to interference from the
executive'' and is also subject to corruption. The State
Department has testified that since the downfall of the
Fujimori government in November 2000, Peru has taken steps to
correct deficiencies in its judicial system, including by
increasing salaries for judges and abolishing an executive
committee which former President Fujimori used to influence the
judiciary. The State Department testimony noted that under U.S.
extradition law and practice, once a fugitive is found
extraditable by a U.S. court, the Secretary of State makes the
final decision on extradition. As part of that review, the
Secretary ``takes into account any information available that
may affect the defendant's ability to receive a fair trial.''
The Committee expects that, until judicial reforms have been
solidified in Peru, the Secretary will give close scrutiny to
all extradition cases to ensure that the defendant is likely to
receive adequate due process protections.
Following negotiation of the Rome Statute on the
International Criminal Court in 1998, the Committee
recommended, in the consideration of extradition treaties, that
the Senate include in its resolutions of advice and consent an
understanding stating that the Rule of Speciality would bar the
retransfer of a fugitive to the International Criminal Court
without the consent of the United States. This understanding
also provides that the United States would not provide such
consent unless it becomes a party to the Court under Article II
of the U.S. Constitution. The Rome Statute has now entered into
force. The Committee again recommends inclusion of such an
understanding. The Committee notes, in this regard, that
earlier this year Congress enacted legislation barring U.S.
cooperation with the Court, including extradition (Title II of
the Supplemental Appropriations Act for Fiscal Year 2002, P.L.
107-206).
Finally, the Committee notes that the State Department
expects that parental child abduction will be an extraditable
offense under the Treaty. The Committee strongly urges the
Departments of Justice and State to seek extradition in such
cases with Peru.
VI. Explanation of Extradition Treaty with Peru
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 Peru
On July 26, 2001, the United States signed a new
Extradition Treaty Between the Government of the United States
of America and the Government of the Republic of Peru to
replace a century-old treaty currently in force between them.
\1\ The new Treaty will be implemented in both the United
States and Peru under the procedural framework of existing
domestic extradition laws \2\ without the need for any new
implementing legislation.
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\1\ Signed at Lima November 28, 1899; entered into force February
22, 1901; 31 Stat. 1921; TS 288; 10 Bevans 1074.
\2\ For the United States, this is Title 18, United States Code,
Section 3184 et seq. For Peru, this is the Law of Extradition (Ley de
Extradicion, Ley No. 24710 (1987)).
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The Office of International Affairs, Criminal Division,
United States Department of Justice, and the Office of the
Legal Adviser, United States Department of State, prepared the
following technical analysis of the new Treaty based on their
participation in its negotiation.
Article I--Obligation to Extradite
Article I of the Treaty contains a standard provision
obligating the United States and Peru to extradite to each
other persons whom the authorities in the Requesting State have
charged with, found guilty of, or sentenced for an extraditable
offense. By referring to persons wanted ``in'' the Requesting
State, the obligation to extradite applies to fugitives from
federal, state, or local justice. This article also makes clear
that such obligation extends not only to persons charged with
or sentenced for such offenses, but also to persons who have
been found guilty but have fled prior to sentencing. Moreover,
the negotiating delegations intended that ``charged'' persons
include those who are sought for prosecution for an
extraditable offense based on an outstanding warrant of arrest,
regardless of whether such warrant was issued pursuant to an
indictment, complaint, information, affidavit, or other lawful
means for initiating an arrest for prosecution under the laws
in Peru or the United States.
Article II--Extraditable Offenses
This Article contains standard guidelines for determining
which offenses are extraditable. As a general rule, it defines
extraditable offenses as those for which the laws of both
countries provide a maximum potential penalty of more than one
year in prison. \3\ In addition to this broad definition, the
Article makes clear that extradition shall be granted for
conspiring or attempting to commit, or otherwise participating
in, \4\ the commission of an extraditable offense. Moreover, in
determining whether the crime would be punishable under its
laws, the Requested State--looking only to the underlying
criminal conduct for which extradition is sought--is required
to disregard differences in the two countries' categorization
of, or terminology used to describe, the offense, as well as
certain federal jurisdictional elements, such as use of the
mail or telephone, that are peculiar to United States federal
law. Finally, this Article 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.
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\3\ During the negotiations, the Peruvian delegation indicated
that, under Peruvian law, key offenses such as drug trafficking
(including CCE), money laundering, terrorism, and organized criminal
activity (RICO), as well as certain tax, export, and environmental
crimes, would meet the requirements of Article II(1) and thus be
extraditable offenses.
\4\ The negotiating delegations intended that ``participation in''
an offense includes, at a minimum, being an accessory before or after
the fact, or aiding, abetting, counseling, commanding, inducing, or
procuring the commission of an offense. See 18 U.S.C Sec. Sec. 2 and 3.
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Paragraph 3(c) of this Article is particularly important in
ensuring that transnational and extraterritorial crimes are
extraditable. By providing that an offense will be extraditable
regardless of where it was committed, this provision will allow
the United States to obtain extradition for violations of U.S.
law--including terrorist offenses--initiated or orchestrated
from abroad, even if committed entirely outside the territory
of the United States, and even if Peruvian law would not
recognize jurisdiction over such offenses under the same
circumstances.
Article III--Extradition of Nationals
Article III provides that extradition shall not be refused
on the ground that the person sought is a national of the
Requested State. For many years, Peruvian law expressly
prohibited the extradition of Peruvian nationals. \5\ When Peru
updated its extradition law in 1987, this prohibition was
omitted, but neither the 1987 law nor the 1899 U.S.-Peru
extradition treaty provide any affirmative basis for the
extradition of Peruvian nationals. \6\ This Article now
provides such an affirmative obligation and will ensure the
ability of the United States to extradite fugitives from Peru
regardless of their nationality.
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\5\ Article 3(1) of Extradition Law of October 23, 1888:
``Extradition will not be granted in any case . . . [w]hen the
individual whose extradition has been requested is a Peruvian citizen
by birth or is a citizen naturalized before the act was committed which
motivated the petition for extradition.''
\6\ Article V of the 1899 treaty states that ``[n]either of the
contracting parties shall be bound to deliver up its own citizens or
subjects under the stipulations of this treaty.''
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Article IV--Bases for Denial of Extradition
This Article sets forth several bases under which the
Requested State may deny extradition. For the most part, it
contains standard treaty language that has been drawn as
narrowly as possible in order to comport with the treaty's
overarching goal of facilitating, rather than hindering,
extradition in the vast majority of cases.
Paragraph 1(a) contains standard ``double jeopardy'' or non
bis in idem language prohibiting extradition if the person
sought has been convicted or acquitted in the Requested State
for the same offense for which extradition is requested. \7\
This provision will permit extradition in situations in which
the fugitive is charged with different offenses in both
countries arising out of the same basic illegal transaction. In
addition, this provision makes clear that extradition will not
be precluded by the fact that the Requested State's authorities
have declined to prosecute, or have discontinued criminal
proceedings against, the person sought for the same offense for
which extradition is requested.
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\7\ 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
ground that the person sought has been convicted or acquitted in a
third State.
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Paragraph 1(b) of this Article prohibits extradition if the
prosecution or punishment for the offense for which extradition
is sought is barred by the statute of limitations of the
Requesting State. This language is an improvement over
provisions applying the Requested State's statute of
limitations, like that contained in the 1899 extradition treaty
in force between the United States and Peru. \8\ From the
modern viewpoint of the United States, the Requested State's
statute of limitations should have no relevance to offenses
committed against the laws of the Requesting State. Like many
countries throughout the world, Peruvian law includes time
limitations not only within which a person must be prosecuted,
but also within which a sentence must be served. Unlike the
United States, all offenses, even murder, are subject to
prescriptive periods, which correspond to the maximum
applicable penalty for the offense, but which in no case exceed
30 years. Moreover, although Peruvian law sets forth certain
circumstances under which the running of the prescription
period is interrupted, it is not, as under United States law,
met simply upon the filing of an indictment or suspended for
such time as the defendant remains a fugitive. Accordingly, the
inapplicability of the Peruvian statute of limitations to
offenses that are the subject of U.S. extradition requests
should significantly limit potential grounds for denial of
extradition.
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\8\ Article VII of the 1899 Treaty.
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Paragraph 2 of this Article sets forth a standard political
offense exception to extradition. The language used in this
Article is typical in that it does not attempt to define what
constitutes a political offense, leaving it to the courts of
the Requested State to determine, based solely on domestic law,
whether a particular extradition request should be denied on
this basis. \9\ This Article, however, does set forth certain
offenses that are not to be considered political offenses.
These include: (1) a violent crime against the Head of State of
the United States or Peru or members of their families; (2)
terrorism, genocide, drug trafficking, and other offenses as
defined in multilateral conventions to which both the United
States and Peru are parties; \10\ and (3) a conspiracy or
attempt to commit, or participation in any of the above
offenses.
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\9\ Generally, United States law recognizes two categories of
political offenses: (1) ``pure'' political offenses, such as treason,
sedition and espionage, which are directed solely against the integrity
of the State; and (2) in more limited circumstances, certain so-called
``relative'' political offenses, i.e., those containing elements of
common crimes, but which are committed as means to political ends or
closely linked with political events.
\10\ 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, (done at New York, December 14, 1973; entered into force
February 20, 1977 (28 UST 1975; TIAS 8532; 1035 UNTS 167)); the
Convention for the Suppression of Unlawful Seizure of Aircraft
(Hijacking) (done at The Hague December 16, 1970; entered into force
October 14, 1971 (22 UST 1641; TIAS 7192)); the Convention for the
Suppression of Unlawful Acts Against the Safety of Civil Aviation
(Sabotage) (done at Montreal September 23, 1971; entered into force
January 26, 1973 (24 UST 564; TIAS 7570)); the International Convention
for the Suppression of Terrorist Bombings (done at New York December
15, 1997; entered into force for the United States July 26, 2002
(Treaty Doc. 106-6)); the International Convention for the Suppression
of the Financing of Terrorism (done at New York December 9, 1999;
entered into force for the United States July 26, 2002 (Treaty Doc.
106-49)); and the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances (done at Vienna December 20,
1988; entered into force November 11, 1990).
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Paragraph 3 states that extradition shall not be granted if
the executive 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 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.
Paragraph 4 of this Article is a standard provision stating
that the Requested State may refuse extradition if the request
relates to an offense under military law that would not be an
offense under ordinary criminal law, such as desertion or
disobedience of orders. This provision makes clear that the
decision whether to grant or refuse an extradition request
based on a military offense is one exclusively in the
discretion of the executive branch.
Paragraph 5 of this Article gives the executive authority
of the Requested State discretion to deny an extradition
request when the person sought will be or has been tried under
extraordinary laws or procedures in the Requesting State. This
provision was included at the instance of the United States
based on concerns at the time of the negotiations over due
process issues in cases that were brought before Peru's special
terrorism tribunals. Since the negotiations, those concerns
have been assuaged considerably by the departure of former
president Fujimori, subsequent reforms to the Peruvian legal
system and the decline in the use of such special terrorism
tribunals in Peru. In fact, some cases originally tried in
special terrorism tribunals have been retried recently in the
civilian court system. In any event, because it is
discretionary, this provision is designed to give the executive
branch of the Requested State sufficient flexibility so as not
to frustrate the treaty's primary goal of bringing fugitives to
justice. In the rare case in which this provision might apply,
the Requested State could nevertheless agree to extradition,
for example, upon being satisfied that the Requesting State has
adopted adequate procedures to safeguard the due process rights
of the accused.
Article V--Death Penalty
Paragraph 1 of this Article gives the Requested State the
discretion 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 such penalty in the
Requested State, unless the Requesting State provides an
assurance that the person sought will not be executed. This is
a common provision in U.S. extradition treaties with countries,
like Peru, that insist on its inclusion based on the abolition
or severe restriction of the death penalty under their laws.
Peru's constitution prohibits the death penalty as a punishment
for all crimes except terrorism and treason. \11\
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\11\ Article 140, Political Constitution of Peru (1993). With
respect to these two offenses, this Article would not restrict
extradition requests for comparable crimes punishable by death under
U.S. law. See 18 U.S.C. Sec. Sec. 2381 and 2331 et seq.
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Paragraph 2 of this Article provides that, aside from the
death penalty, extradition cannot be denied nor subjected to
conditions on the basis that the penalty for the offense is
greater in the Requesting State than in the Requested State.
This provision is designed to make clear that the Requested
State cannot impose penalty-related conditions that are outside
the scope of the express provisions in paragraph 1 of this
Article. This provision was included at the request of the
United States in response to a recent trend during which a
number of countries sought assurances relating to sentences of
life imprisonment, as well as those imposed for terms of years,
when there was no basis in the applicable treaty for making
such a demand.
Article VI--Extradition Procedures and Required Documents
This Article contains standard provisions setting forth the
appropriate means of transmitting an extradition request and
the required documentation and evidence to be submitted in
support thereof.
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. Paragraph 5 allows the Requested State
to seek, if necessary, supplemental information from the
Requesting State within a designated period of time.
Among the documentation required in support of a request
for the extradition of a person charged with, but not yet
convicted of, a crime is evidence ``sufficient to justify the
committal for trial'' of the person sought if the offense had
been committed in the Requested State. This provision is
consistent with fundamental extradition jurisprudence in the
United States and will be interpreted by U.S. courts to require
that Peru provide evidence sufficient to establish ``probable
cause'' that an extraditable crime was committed by the person
sought. The Peruvian delegation explained that, in accordance
with Peruvian law, Peruvian courts would apply a comparable
standard of proof to U.S. requests.
In regard to persons who already have been found guilty of
the offense for which extradition is sought, no showing of
probable cause is required. The Requesting State need provide
only a copy of the judgment of conviction and such evidence
establishing that the person sought is the person to whom the
conviction refers.
Article VII--Translation and Admissibility of Documents
This Article contains a standard treaty provision requiring
that all documents submitted in support of an extradition
request be translated into the language of the Requested State
(Spanish for Peru and English for the United States). It also
provides that properly certified and authenticated documents
accompanying an extradition request shall be accepted as
evidence in extradition proceedings. \12\
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\12\ See Title 18, United States Code, Section 3190, for
traditional means of authenticating extradition documentation. This
provision also has the added flexibility of allowing the admissibility
of documents that have been certified or authenticated in other ways
accepted by the laws in the Requested State.
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Article VIII--Provisional Arrest
This Article contains standard language describing the
process by which a person may be arrested and detained in the
Requested State while the extradition documents required by
Article VI are being prepared and translated in the Requesting
State.
Provisional arrest serves the interests of justice by
allowing for the apprehension of fugitives who, for example,
pose a danger to the community or a risk of flight. 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, it provides that provisional arrest may
be effected only under urgent circumstances, requires that a
valid warrant for the fugitive's arrest or a finding of guilt
or judgment of conviction exist in the Requesting State, and
imposes a 60-day time limit within which the formal extradition
documentation must be presented to the executive authority of
requested country or the person sought may be released from
custody. The Article also makes clear, however, that the
release of the person sought because of a missed deadline will
not preclude the re-arrest of, and re-commencement of
extradition proceedings against, the person sought if the
formal request and supporting documentation are received at a
later date.
Article IX--Decision on the Extradition Request and Surrender of the
Person Sought
This Article contains standard language concerning the
Requested State's obligation to notify the Requesting State of
its decision on an extradition request and to provide an
explanation if the request is denied. It also contains standard
provisions concerning arrangements for surrendering the person
sought to authorities of the Requesting State and consequences
if the Requesting State fails to remove the person within the
required time.
Article X--Deferred and Temporary Surrender
In the event that the person sought by the Requesting State
is being prosecuted or serving a sentence in the Requested
State, this Article allows the Requested State to postpone the
extradition proceedings and surrender of that person until the
conclusion of its own prosecution or the completion of the
service of any sentence imposed as a result thereof. As an
alternative, the Requested State may temporarily surrender the
person for prosecution in the Requesting State.
Under the terms of this Article, a person temporarily
surrendered 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) he or she might resolve all outstanding charges sooner; (2)
subject to the laws of each State, he or she may be able to
serve concurrently the sentences imposed by the Requesting and
Requested States; and (3) he or she can defend against the
charges while favorable evidence is fresh and more likely to be
available to the defense.
Article XI--Concurrent Requests
When the Requested State has received an extradition
request under this treaty, and also has received a request for
the same person from one or more other countries, this Article
sets forth standard factors to be considered by the Requested
State in determining to which country it will surrender the
person sought.
Article XII--Seizure and Surrender of Property
At the time of their arrest in the Requested State, persons
are often in possession of property that is connected in some
way to the offense for which extradition is sought. This
Article allows such property to be surrendered to the
Requesting State upon extradition, so that the property may be
used as evidence at trial, returned to the victims, or
otherwise disposed of appropriately. The Requested State,
however, may condition the surrender of the property upon
assurances from the Requesting State that such property will be
returned to the Requested State as soon as practicable, and
this Article provides that the rights of third parties in such
property shall be respected.
Article XIII--Rule of Speciality
This Article contains standard provisions relating to the
rule of speciality, which, in general terms, 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 ploy--for example, to obtain custody of a person for trial
or service of sentence on different charges that would not be
extraditable under the Treaty. Paragraph 1 of this article also
sets forth several standard exceptions to the general rule
which allow the Requesting State to pursue: (1) lesser included
or differently denominated offenses based on the same facts as
the crime for which extradition was granted; \13\ (2) an
offense committed after extradition; \14\ or (3) any offense
for which the Requested State gives consent. \15\ 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. \16\
Finally, paragraph 3 permits 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 ten days
of being free to do so. \17\
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\13\ Allowing the Requesting State to proceed on such crimes 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.
\14\ The rule of speciality does not provide the defendant with any
immunity for offenses committed after his or her surrender to the
Requesting State.
\15\ 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. The
Requested State's consent, when no other exception applies, can prevent
an injustice by allowing, for example, the prosecution of an extraditee
who (the Requesting State does not discover until after extradition)
was the perpetrator of a previously unsolved crime that was committed
prior to the extradition from the Requested State and is completely
separate and distinct from the offense for which extradition was
sought. In the United States, the Secretary of State has the authority
to consent.
\16\ 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. It is expected that this provision
also would apply to situations involving any international tribunal
located in a third State. 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.
\17\ This provision recognizes 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. In effect, if the
extraditee chooses to return to or remain in the Requesting State, he
or she relinquishes the benefits of the rule.
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Article XIV--Simplified Procedure for Surrender
This Article contains a standard provision allowing, upon
his or her consent, the expeditious surrender of the person
sought to the Requesting State without further proceedings.
Persons sought for extradition frequently elect to expedite
their return to the Requesting State under such provisions in
order to resolve the charges against them and to spend as
little time as possible in custody in the Requested State.
Expedited surrender also saves the judicial and law enforcement
authorities of the Requested State the significant expense
associated with prolonged extradition proceedings. In cases
where a person has waived further proceedings, and along with
them protections in the treaty and applicable extradition
statutes, the process is not deemed an ``extradition,'' and
therefore the rule of speciality in Article XIII does not
apply.
Article XV--Transit
At times, law enforcement authorities escorting a
surrendered person back to the State where he or she 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 a third State. This
Article contains standard provisions authorizing such transits
in 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 transit.
Article XVI--Representation and Expenses
This Article provides that the Requested State shall
advise, assist, appear in court on behalf of, and represent the
interests of the Requesting State in extradition proceedings.
Such representation ensures that the Requested State abides by
its obligation under the Treaty to secure the return of every
extraditable criminal to the Requesting State. By participating
in the extradition proceedings, the governments also have the
opportunity to shape extradition law and practice in a way that
is beneficial to both themselves and their treaty partners.
Pursuant to a February 15, 1990, exchange of diplomatic notes,
the United States and Peru already provide representation to
each other in extradition cases and, with this provision,
intend to continue the current practice. In accordance with
established practice, the Department of Justice will represent
Peru in all aspects of extradition proceedings in the United
States. Likewise, prosecutors from the Peruvian Public Ministry
will represent the interests of the United States in such
proceedings in Peru.
This Article also contains standard provisions regarding
extradition-related expenses and pecuniary claims against the
Parties.
Article XVII--Consultation
This standard Article serves the interests of the United
States by promoting close cooperation with our foreign
counterparts on extradition issues. It allows the U.S.
Department of Justice and Peruvian Ministry of Justice to
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.
Article XVIII--Application
This Article makes clear that the Treaty applies to
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,
\18\ because extradition treaties do not criminalize any act.
They merely provide a means by which persons who committed acts
that were criminal offenses in both countries at the time of
their commission can be held to answer for those offenses. \19\
Provisions such as this Article ensure that large classes of
criminals are not immunized from prosecution and allowed
impunity merely by virtue of the fact that they committed their
offenses prior to the entry into force of a particular
bilateral extradition treaty.
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\18\ U.S. Const., art. I, Sec. 9, cl. 3.
\19\ 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).
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Article XIX--Final Clauses
This Article contains standard treaty provisions regarding
the ratification, entry into force, and termination of the
Treaty.
VII. Text of Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE EXTRADITION TREATY
WITH PERU, SUBJECT TO AN UNDERSTANDING AND A
CONDITION.
The Senate advises and consents to the ratification of the
Extradition Treaty Between the United States of America and the
Republic of Peru, signed at Lima on July 26, 2001 (Treaty Doc.
107-6; in this resolution referred to as the ``Treaty''),
subject to the understanding in section 2 and the condition in
section 3.
SEC. 2. UNDERSTANDING.
The advice and consent of the Senate under section 1 is
subject to the following understanding, which shall be included
in the instrument of ratification:
Prohibition of Extradition to the International
Criminal Court.--The United States understands that the
protections contained in Article XIII concerning the
Rule of Speciality would preclude the resurrender of
any person extradited to the Republic of Peru from the
United States to the International Criminal Court,
unless the United States consents to such resurrender;
and the United States shall not consent to any such
resurrender unless the Statute establishing that Court
has entered into force for the United States by and
with the advice and consent of the Senate in accordance
with Article II, section 2 of the United States
Constitution.
SEC. 3. CONDITION.
The advice and consent of the Senate under section 1 is
subject to the condition that nothing in the Treaty requires or
authorizes legislation or other action by the United States
that is prohibited by the Constitution of the United States as
interpreted by the United States.
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