[Senate Executive Report 107-13]
[From the U.S. Government Publishing Office]
107th Congress Exec. Rpt.
2nd Session SENATE 107-13
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EXTRADITION TREATY WITH LITHUANIA
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October 17, 2002.--Ordered to be printed
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Mr. Biden, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 107-4]
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
Lithuania, signed at Vilnius on October 23, 2001 (Treaty Doc.
107-4), having considered the same, reports favorably thereon
with 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.................................2
IV. Committee Action.................................................3
V. Committee Comments...............................................3
VI. Explanation of Extradition Treaty with Lithuania.................3
VII. Text of Resolution of Advice and Consent to Ratification.........7
I. Purpose
The purpose of the Extradition Treaty with Lithuania
(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
Lithuania. That treaty was signed and entered into force in
1924 (43 Stat. 1835), and amended by a Supplementary Treaty
signed in 1934 (49 Stat. 3077) (hereafter the ``1924 treaty'').
The treaty before the Senate is designed to replace, and
thereby modernize, the treaty with Lithuania. It was signed in
October 2001 and submitted to the Senate on May 7, 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
1924 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 1924 treaty with Lithuania. 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 3 states that extradition ``shall not be
refused based on the nationality of the person sought.'' This
contrasts with the 1924 treaty, which does not obligate a party
to extradite its nationals. Many countries in Europe 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.
Inclusion of this provision in the Treaty with Lithuania is an
important step forward in ensuring that fugitives who commit
crimes in the United States are tried in U.S. courts.
The Treaty contains two 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 1924 treaty
contains such an exception in Article III, though it provides
that murder or attempted murder of a Head of State or a member
of his family shall not be considered a political offense. The
Treaty before the Senate retains the political offense
exception (and the Head of State exception to the exception) in
Article 4. Several other exceptions to the political offense
exception are added (see paragraph 2(c) through (f) of Article
4).
The Treaty also contains a provision related to the death
penalty. Under Article 7, 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 22, 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 condition set forth in the
resolution of advice and consent to ratification.
V. Committee Comments
The Committee recommends favorably the Treaty with
Lithuania. It modernizes a treaty which is nearly 80 years 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 Lithuania.
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. Inclusion of such an understanding in the resolution of
advice and consent is unnecessary in this instance, however,
because the Treaty itself specifically bars such a retransfer.
Article 16(2) provides that a person extradited under the
Treaty may not be extradited to a third state or extradited or
surrendered to an international tribunal for any offense
committed prior to extradition unless the Requested State
consents.
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
Lithuania.
VI. Explanation of Extradition Treaty with Lithuania
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
Lithuania
On October 23, 2001, the United States signed an
Extradition Treaty Between the Government of the United States
of America and the Government of the Republic of Lithuania. 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. Lithuania will
enact the Treaty pursuant to its own domestic laws.
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.
As negotiated, the text of the Extradition Treaty between
the United States and Lithuania substantially conforms to
modern extradition treaties recently concluded by the United
States, except as noted below.
Article 1--Obligation to Extradite
This article provides that the Parties agree to extradite
to each other, pursuant to the provisions of this Treaty,
persons whom the authorities in the Requesting State have
charged with or convicted of an extraditable offense. During
the negotiations, the Lithuanian delegation confirmed that the
term ``convicted'' means found guilty under the laws of
Lithuania. Moreover, under Lithuanian law, a defendant is
sentenced at the time he is found guilty. The U.S. delegation
explained that under U.S. law, there are separate proceedings
for the prosecution and sentencing of a defendant. The
Lithuanian delegation confirmed that a fugitive can be
extradited when he has been found guilty but has not been
sentenced.
Article 2--Extraditable Offenses
Article 2(1)--During the negotiations, the Lithuanian
delegation confirmed that extraditable offenses include
narcotics, terrorism, racketeering (RICO), and money laundering
offenses. The Lithuanian delegation also confirmed that the
treaty covers securities fraud, tax fraud, parental kidnaping,
antitrust offenses, environmental protection offenses,
conspiracy, and escape. The Lithuanian delegation pointed out
that while some export control offenses may not be extraditable
offenses, Lithuania will look for a violation of other penal
laws to find the conduct is extraditable. Lithuania will
extradite a fugitive who flees prosecution or escapes from
detention so long as the prosecution or sentencing occurred no
later than 15 years from the time the crime is committed.
However, under Lithuanian law, there is no statute of
limitations bar to the prosecution or sentencing of persons
charged with genocide and war crimes. The Lithuanian delegation
confirmed that extradition shall be granted irrespective of the
amount of time remaining to be served, even if it is only a few
months.
Article 2(2)--The Lithuanian delegation confirmed that, in
general, an offense shall also be an extraditable offense if it
consists of an attempt or a conspiracy, or participation in the
commission of any offense encompassed by paragraph 1. Under
Lithuanian law, the offense of abetting is applicable to all
crimes. However, aiding a crime only pertains to severe
felonies.
Article 3--Nationality
Article 3, which contains language standard to many recent
U.S. extradition treaties, was the basis for extensive
discussion between the U.S. and Lithuanian delegations. The
Lithuanian delegation noted that there is no word in the
Lithuanian language for ``nationality.'' The closest word to
``nationality'' in the Lithuanian language is ``citizenship.''
Consequently, the delegations agreed that the English text of
the Treaty will use the word ``nationality'' and the Lithuanian
text will use the word ``citizenship.'' This provision
overcomes the pre-existing legal barrier to the extradition of
Lithuanian citizens. There is no barrier to extraditing non-
citizens.
Article 5(1)--Prior Prosecution
The Lithuanian delegation expressed concern that the terms
``convicted or acquitted'' used in the first sentence are not
broad enough to cover all matters under Lithuanian law.
Therefore, the following sentence was added to provide a
broader definition: ``Conviction or acquittal also means, under
Lithuanian law, an agreed resolution approved by a court with
final and binding effect.''
Article 9--Admissibility of Documents
The delegations discussed the procedures required by their
respective governments for the admissibility of extradition
documents. They agreed that when the United States requests the
extradition of a fugitive located in Lithuania, the documents
must be ``certified by the signature and official seal of the
executive authority of Requesting State.'' In instances in
which Lithuania requests the extradition of a fugitive, the
documents must be ``certified by the principal diplomatic or
principal consular officer of the United States resident in the
Republic of Lithuania, as provided by the extradition laws of
the United States.''
Article 11(1)--Provisional Arrest
Paragraph 1 provides that, in urgent cases, the United
States Department of Justice and the Office of the Public
Prosecutor or the facilities of the International Criminal
Police Organization (Interpol) may transmit provisional arrest
requests. The Lithuanian delegation noted that urgent
provisional arrest requests should be perfected through the
diplomatic channel. Thus, the United States agreed that in
circumstances where the provisional arrest request is
transmitted directly to the Office of the Public Prosecutor or
Interpol, the United States will also provide a copy of the
provisional arrest request, at a later time, through the
diplomatic channels.
Article 12(1)--Decision and Surrender
The delegations agreed that notification of the Requested
State's decision on the request for extradition should be
provided through diplomatic channels. They also agreed to
provide informal notification between the Department of Justice
and the Office of the Public Prosecutor.
Article 13(1)--Temporary and Deferred Surrender
This article provides that, if the extradition request is
granted in the case of a person who is being proceeded against
or is serving a sentence in the Requested State, the Requested
State may temporarily surrender the person sought by the
Requesting State for the purpose of prosecution. The
delegations agreed that, for purposes of this article, the term
``prosecution'' shall encompass standing trial, entering a plea
of guilty, or receiving a sentence. Moreover, the delegations
agreed that in instances where the Requested State agrees to
temporarily surrender the person sought, the Requesting State
agrees that the person shall remain in custody unless the
Requested State provides written approval for release on bail
or some other form of constructive custody.
Article 14--Requests for Extradition Made
by Several States
Article 14 contains standard language that makes clear that
if the Requested State receives requests from the Requesting
State and from any other State or States for the extradition of
the same person, 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 the person.
The United States delegation noted that the decision by the
United States will be made by the Department of State, in
consultation with the Department of Justice. The Lithuanian
delegation noted that the decision by Lithuania will be made by
the Ministry of Justice, in consultation with the Office of the
Prosecutor.
The delegations discussed relevant factors that shall be
considered in making a decision regarding extradition where
requests are made by several states. In accordance with
paragraph c, the nationality of the person sought will be
considered in determining the relevance of the respective
interests of the Requesting States. Moreover, in paragraph e,
the English text will use the term ``nationality'' of the
victim, and the Lithuanian text will use the term
``citizenship'' of the victim. The delegations confirmed that
these terms have the same meaning, as explained in Article 3
above.
Article 16(2)--Rule of Speciality
In order to ensure that this provision encompasses
surrenders other than through extradition, the delegations
agreed that the provision would read as follows: ``A person
extradited under this Treaty may not be extradited to a third
State or extradited or surrendered to an international tribunal
for any offenses committed prior to extradition unless the
Requested State consents.''
Article 17--Consent to Waiver of Extradition Proceedings
The delegations agreed that the Rule of Specialty does not
apply when the person sought consents to be surrendered. The
Lithuania delegation confirmed that such a consent can be made
prior to the receipt of the formal documentation. They
indicated that Lithuanian law requires a consent to be made in
writing.
Article 18(2)--Transit
In the unlikely event that either Party needs to invoke
Article 18(2) to make an unscheduled landing on the territory
of the other State, a request for transit must be received
within 48 hours of the unscheduled landing. Typically, the
language of this provision provides for 96 hours, however,
under Lithuanian law, a person cannot he detained for more than
48 hours without consent of the court.
Article 20--Consultation
The Parties agreed that they would meet and consult with
each other once a year in connection with the processing of
individual cases and in furtherance of efficient implementation
of this Treaty.
Article 22--Ratification, Entry into Force, and Termination
The Parties agreed, in general, to the standard language of
this provision. However, the Lithuanian delegation indicated
that an additional sentence was necessary to clarify the status
of requests submitted to the Ministry of Justice under the old
Treaty, but not yet submitted to the courts prior to the entry
into force of the new Treaty. The Lithuanian delegation feared
that without further clarification, their courts would rely on
the outdated Treaty. Thus, the delegations agreed to add the
following sentence at paragraph 4: ``With respect to any
extradition proceedings in which the request for extradition
was received by the Requested State but not submitted to its
courts before the entry into force of this Treaty, the
Requesting State, after entry into force of this Treaty, may
amend or supplement the request for extradition as necessary in
order for it to be submitted to the courts of the Requested
State under this 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 LITHUANIA, SUBJECT TO A CONDITION.
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 Lithuania,
signed at Vilnius on October 23, 2001 (Treaty Doc. 107-4; in
this resolution referred to as the ``Treaty''), subject to the
condition in section 2.
SEC. 2. 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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