[Senate Executive Report 106-26]
[From the U.S. Government Publishing Office]
106th Congress Exec. Rept.
SENATE
2d Session 106-26
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EXTRADITION TREATIES WITH BELIZE, PARAGUAY, SOUTH AFRICA AND SRI LANKA
_______
October 4 (legislative day, September 22), 2000.--Ordered to be printed
_______
Mr. Helms, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Docs. 106-38, 106-4, 106-24 and 106-34]
The Committee on Foreign Relations, to which were referred
the Extradition Treaty Between the Government of the United
States of America and the Government of Belize, signed at
Belize on March 30, 2000 (Treaty Doc. 106-38); the Extradition
Treaty between the Government of the United States of America
and the Government of the Republic of Paraguay, signed at
Washington on November 9, 1998 (Treaty Doc. 106-4); the
Extradition Treaty Between the Government of the United States
of America and the Government of the Republic of South Africa,
signed at Washington on September 16, 1999 (Treaty Doc. 106-24)
and the Extradition Treaty Between the Government of the United
States of America and the Government of the Democratic
Socialist Republic of Sri Lanka, signed at Washington September
30, 1999 (Treaty Doc. 106-34) having considered the same,
reports favorably thereon with the understandings, declarations
and provisos indicated in Section VIII, 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
ratification.
CONTENTS
Page
I. Purpose..........................................................2
II. Background.......................................................2
III. Summary..........................................................2
IV. Entry Into Force and Termination.................................6
V. Committee Action.................................................6
VI. Committee Recommendation and Comments............................7
VII. Explanation of Proposed Treaties.................................9
VIII.Text of Resolutions of Ratification.............................64
I. Purpose
These treaties obligate the Parties to extradite fugitives
at the request of a Party subject to conditions set forth in
the treaties.
II. Background
The United States is a party to more 115 bilateral
extradition treaties. The four extradition treaties considered
in this report all update existing treaties, namely, the 1972
United States-United Kingdom treaty that now governs U.S.
extradition relations with Belize, the 1973 treaty with
Paraguay, the 1947 treaty with South Africa and the 1931 United
States-United Kingdom treaty that currently governs U.S.
extradition relations with Sri Lanka. Each of the new treaties
contains the core elements sought by the United States in
modern, effective extradition treaties, namely, the dual
criminality principal, improved provisional arrest procedures,
temporary surrender provisions, extradition waiver provisions,
extraterritorial scope for some offenses, retroactivity and
elimination of nationality as a basis to refuse an extradition
request.
Extradition relationships have long been a basis of United
States bilateral relationships. They represent a recognition by
the United States of the legitimacy of a country's judicial
system. Respect for a treaty partner's judicial system is
essential since the parties permit the transfer of individuals
to another country in order to stand trial for alleged crimes.
III. Summary
A. GENERAL
An extradition treaty is an international agreement in
which the Requested State agrees, at the request of the
Requesting State and under specified conditions, to surrender
persons to the Requesting State who are within the Requested
State's jurisdiction and who are charged with certain crimes
against, or are fugitives from, the Requesting State.
Since the Committee's last review of extradition treaties
(see Exec. Rept. 105-23 of October 14, 1998), the Departments
of State and Justice have continued efforts to modernize U.S.
bilateral extradition treaties to better combat international
criminal activity, such as drug trafficking, terrorism and
money laundering. Modern extradition treaties share a number of
common characteristics: (1) they identify the offenses for
which extradition will be granted; (2) they establish
procedures to be followed in presenting extradition requests;
(3) they enumerate exceptions to the obligation to extradite;
(4) they specify the evidence which the Requesting State must
supply in order to support a finding in the Requested State of
an obligation to extradite; and (5) they set forth
administrative provisions for bearing costs and legal
representation.
In the United States, the legal procedures for extradition
are governed by both federal statutes and self-executing
treaties. Federal statutes control the judicial process by
which a U.S. judge makes a certification to the Secretary of
State that she may extradite an individual under an existing
treaty. Extradition proceedings are considered to be non-
criminal in nature, and are conducted by U.S. judges. Habeas
corpus is the only legal avenue open to fugitives seeking to
challenge a certification of extraditability by a U.S. judge.
For its part, the U.S. government may not appeal a finding by a
judge, but must instead file a new petition for extradition in
that event.
U.S. courts have held that the following elements must
exist in order for a court to find that the Secretary of State
may extradite: (1) the existence of a treaty authorizing
extradition for one or more offenses for which the defendant is
actually charged; (2) charges for which extradition is sought
are actually pending against the defendant in the Requesting
State; (3) the defendant is the same individual sought for
trial or service of sentence in the Requesting State; (4)
probable cause exists to believe that the defendant is guilty
of charges pending against him in the Requesting State; and (5)
the acts alleged to have been committed by the defendant are
punishable as criminal conduct in both the Requesting State and
under the criminal law of the United States (i.e., there is
``dual criminality'').
After a judge has made a determination that an individual
may be extradited under U.S. law, and so certifies to the
Secretary of State, the Secretary may nevertheless decline to
surrender the individual to the Requesting State on foreign
policy or other grounds, as defined in the relevant treaty or
even absent an express treaty provision. She may also decline
if she believes the request was politically motivated.
B. KEY PROVISIONS
1. Extraditable Offenses--The Dual Criminality Requirement
In general, extradition agreements cover only the offenses
designated in them. Older U.S. extradition agreements--so-
called ``list treaties''--designate extraditable offenses
through inclusion of a list of covered crimes. Some, but not
all, of these agreements include an additional requirement that
a listed offense be considered a felony by both the requesting
and the requested States. List treaties, which in some cases
were negotiated at or before the beginning of the 20th century,
are no longer adequate to meet the demands of modern
criminality.
Modern extradition agreements either supplement or
completely replace the list method with a general dual
criminality test. Under this test, extradition may be had for
any offense that is punishable by imprisonment of at least 1
year by both the requesting State and the requested State. All
four treaties employ some variation of the dual criminality
method for determining what are extraditable offenses, and
represent substantial improvements over the agreements they
replace.
2. Extraterritorial offenses
The ability of a state to extradite and to obtain the
extradition of individuals charged with international drug
trafficking or terrorism offenses committed outside of its
national territory can be an important weapon in the fight
against global crime. A question thus arises over whether
offenses which occur outside the territory of the Requesting
State may be considered ``extraditable offenses'' under
extradition treaties.
In general, U.S. extradition agreements concluded before
1960 limit the obligation to extradite to those crimes which
are committed within the ``jurisdiction'' of the requesting
State. ``Jurisdiction'' in the context of these agreements is
interpreted to mean territorial jurisdiction only, not criminal
jurisdiction. As U.S. criminal law increasingly addresses
extraterritorial acts, under older agreements, a disparity
arises between the reach of U.S. law and the ability of the
United States to bring suspects to trial. To varying degrees,
all four of these extradition treaties include provisions which
open the door to extradition for extraterritorial offenses
which would be otherwise extraditable under the treaty.
3. Retroactivity
New extradition treaties generally apply to offenses
committed before, as well as to those committed after, they
enter into force. Application of a new treaty to crimes
committed before its effective date does not make certain
conduct criminal that was not punishable when committed, which
would raise possible ex post facto objections under the
Constitution. Rather, application of a new treaty to permit
extradition for past crimes is a procedural provision that
merely adds a law enforcement tool to assist in the prosecution
and punishment of conduct that already was criminal when
committed. All four treaties expressly apply to offenses
committed before the entry into force of the treaty.
4. Surrender of Nationals
Many ``Napoleonic Code'' or civil law countries (e.g.,
Germany, Venezuela and France) decline to extradite their own
citizens to foreign countries to face justice for their alleged
criminal conduct abroad. Instead, they prosecute their citizens
locally for the offense committed abroad. In the U.S. view,
this situation is unsatisfactory. Such cases are, at best, a
very low priority for the foreign prosecutor or investigating
magistrate, who often prove reluctant to devote time and
resources to prosecute or investigate conduct which occurred
thousands of miles from their jurisdiction. The historic Anglo-
American view is that justice is better-served by prosecution
in the venue where the offense was committed.
The United States, like many common law countries, does not
object to extraditing its own citizens. The United States has
sought to negotiate treaties without nationality restrictions.
Unfortunately, many civil law countries continue to restrict
extradition of their nationals under their extradition
agreements, their domestic law, or both. Among the treaties
addressed in this respect, therefore, the nationality provision
in the Paraguay treaty is significant: the treaty contains an
express bar on refusing to extradite on nationality grounds.
The other three treaties under consideration also bar
withholding extradition on nationality grounds.
5. Political Offense Exception
As it originally evolved, the political offense exception
in international extradition practice protects an individual
from being sent abroad to stand trial or face punishment for an
offense of a political nature. Although U.S. extradition
practice historically has barred extradition for political
offenses, there has been a trend during the last 20 years to
narrow the scope of the exception. Newer extradition treaties
have excluded from consideration as political offenses (either
by specific listing or by general reference) certain
universally condemned crimes that are subject of multilateral
agreements, such as hostage taking, air hijacking, aircraft
sabotage, and attacks on heads of state. In those cases, Party
States must prosecute a person accused of a covered crime or
extradite the person for trial elsewhere.
The United States significantly departed from previous
political offense practice in 1986 with the adoption of a new
supplementary extradition treaty with the United Kingdom. Under
the supplementary treaty, most serious violent crimes against
individuals are excluded from consideration as political
offenses. The U.K. model subsequently was used in some treaties
concluded with democratic allies (e.g., Canada and Germany),
but other recent treaties with democratic allies (e.g.,
Australia) have not narrowed the political offense exception in
line with the U.K. treaty.
The Belize, Sri Lanka, and Paraguay treaties do not limit
the political offense exception as narrowly as many other
recent agreements do. Still, attacks against a Head of State
(or a family member) could not be considered a political
offense, nor could a crime covered by a mutually binding
multilateral agreement that requires a Party to extradite or
prosecute for a specific type of crime (e.g., aircraft
hijacking, etc.). The South Africa treaty is to similar effect,
but also expressly disallows murder, kidnaping, and hostage
taking as political offenses.
The Paraguay, Sri Lanka, and Belize treaties further would
deny extradition if the executive authority of a requested
State determines that a request is politically motivated. The
South Africa treaty would deny extradition if the executive
authority of the requested State determines that there are
substantial grounds for believing that a request has been made
primarily to punish or prosecute on the basis of race,
religion, nationality, or political opinion.
6. Capital Punishment
Typically, foreign treaty partners decline to extradite
fugitives to the United States who face the possibility of
capital punishment, absent assurances that this penalty will
not be imposed.
Capital punishment provisions have become common in recent
U.S. extradition agreements. The capital punishment provisions
generally authorize the requested State to refuse extradition
whenever the extraditable offense is punishable by death in the
requesting State, but not in the requested State, unless the
requesting State furnishes such assurances as the requested
State considers sufficient that the sentence will not be
imposed and executed.
The new treaties with Paraguay and South Africa are typical
of this approach. The new treaty with Sri Lanka is similar to
these, but it contains an exception with respect to crimes
which would constitute murder in both States, in which case the
prospect of capital punishment is irrelevant. The treaty with
Belize does not contain a death penalty restriction, and hence
is similar to the eight extradition treaties with Caribbean
countries that were approved by the Senate in 1998 (Exec. Rept.
105-23).
7. Statute of Limitations
Fugitives often attempt to avoid extradition to a
requesting state by asserting that the statute of limitations
has expired (also known as ``lapse of time'' or
``prescription'') in the requesting state, the requested state,
or both, for the offense giving rise to the extradition
request. The Belize treaty states that ``[e]xtradition shall
not be denied because of the prescriptive laws of either the
Requesting State or the Requested State.'' Similarly, the Sri
Lanka treaty states that extradition is not to be barred
``because of the laws relating to lapse of time of either the
Requesting State or the Requested State.'' The Paraguay treaty
is silent on the issue. The South Africa treaty authorizes
denial of extradition ``when the prosecution has become barred
by lapse of time according to the law of the Requesting
State.''
8. The Rule of Speciality
The rule of speciality (also specialty) is designed to
assure that an extradited individual will be prosecuted only
for the offense for which extradition was granted and that an
extradition request for one offense is not a subterfuge for
obtaining the defendant to stand trial for unrelated matters.
Though the rule applies under every U.S. bilateral treaty, many
exceptions commonly are included. Among these are exceptions
that permit additional prosecutions (1) with the consent of the
requested State, (2) for lesser included offenses, (3) for
offenses committed after extradition, or (4) against an
extradited individual who has left and then returned to the
requesting State, or who has remained in the requesting State
for a period of time (usually 30 or 60 days) after being free
to leave. All four of the new treaties effectively incorporate
the Rule of Specialty.
IV. Entry Into Force and Termination
A. ENTRY INTO FORCE
The Treaties generally provide for the entry into force of
the treaty either on the date of, or a short time after, the
exchange of instruments of ratification.
B. TERMINATION
The Treaties generally provide for the Parties to withdraw
from the Treaty by means of written notice to the other Party.
Termination would take place six months after the date of
notification.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed Treaties on September 12, 2000 (a transcript of
the hearing and questions for the record can be found in S.
Hrg. 106-660, entitled ``Consideration of Pending Treaties'').
The Committee considered the proposed Treaties on September 27,
2000, and ordered them favorably reported by voice vote, with
the recommendation that the Senate give its advice and consent
to the ratification of the proposed Treaties subject to the
understandings, declarations and provisos noted below.
VI. Committee Recommendation and Comments
The Committee on Foreign Relations recommends favorably the
proposed Treaties. On balance, the Committee believes that the
proposed Treaties are in the interest of the United States and
urges the Senate to act promptly to give its advice and consent
to ratification. The Committee believes that the following
comments may be useful to the Senate in its consideration of
the proposed Treaties and to the Executive Branch in its
application of the Treaties.
A. RESTRICTION ON RE-EXTRADITION OF FUGITIVES TO THE INTERNATIONAL
CRIMINAL COURT
As discussed in Exec. Rept. 105-23, on July 17, 1998, a
majority of nations at the United Nations Diplomatic Conference
on the Establishment of an International Criminal Court (Rome,
Italy) approved a treaty that would, upon entry into force,
establish an International Criminal Court. The Court would be
empowered to investigate and prosecute war crimes, crimes
against humanity, genocide and aggression. The United States
voted against this treaty.
Because of the implications for Americans involved in
formulation and execution of United States foreign policy,
several members of the Committee remain deeply concerned by the
prospect of an International Criminal Court empowered to
investigate the matters referred to above that is permanent,
could become politicized, and over which there would be limited
international political control. This concern is magnified by
events since adoption of Exec. Rept. 105-23, namely,
International Criminal Tribunal for the Former Yugoslavia Chief
Prosecutor Carla del Ponte's claim of jurisdiction over United
States and other NATO forces for their conduct during the
Kosovo combat operations in 1999.
In light of the Secretary of State's expressed desire that
the United States become a ``good neighbor'' to the Court if it
enters into being, and if certain safeguards designed to
protect U.S. officials and soldiers from prosecution are
approved, as well as other factors, several members of this
Committee are concerned that United States bilateral
extradition treaties could become conduits for transferring
fugitives or charged persons located in the United States to
the Court (if it comes into existence) even though the United
States voted against its establishment.
Accordingly, the Committee has decided once again to insert
into each of the Resolutions of Ratification accompanying the
Extradition Treaties discussed in this report an understanding
relative to an eventual International Criminal Court.
Specifically, the understanding would obligate the President to
restate in United States instruments of ratification, relative
to each treaty's provision on the Rule of Specialty, that
United States consent must be obtained before a treaty partner
may re-extradite a U.S.-surrendered person to a third
jurisdiction. The understanding further states that future
United States policy shall be to refuse such consent to the
transfer of individuals to the International Criminal Court
unless the United States ratifies the treaty establishing the
Court pursuant to the procedures stated in Article II, section
2, of the United States Constitution.
B. USE OF EXTRADITION TREATIES TO AGGRESSIVELY PURSUE INTERNATIONAL
PARENTAL CHILD ABDUCTORS
The Committee on Foreign Relations remains concerned about
the serious problem of international parental child abduction.
Notably, a September 2000 General Accounting Office report
(GAOP/GAO/NSIAD-00-226BR) reveals that an estimated 1,000
children are abducted by one of their parents from the United
States annually. Between January 1995 and May 15, 2000, ``left
behind'' American parents initiated nearly 300 cases under the
1980 Hague Convention on the Civil Aspects of International
Child Abduction involving just three countries: Germany, Sweden
and Austria. Well over half of those cases are unresolved.
The Committee reiterates its grave concern over this
troubling issue. The Departments of State and Justice must
redouble their efforts to bring international parental child
abduction firmly within the scope of offenses covered by
existing and future bilateral extradition treaties. Diplomatic
efforts must be undertaken to obtain commitments from our
treaty partners that international child abduction--whether as
an independent offense, or as an offense included within the
scope of the offense of kidnaping--shall be deemed an
extraditable offense. Law enforcement efforts must be
undertaken to ensure that, in all cases of parental child
abduction, extradition requests are quickly prepared and sent
to the treaty party concerned, even when that party does not
extradite its citizens, or would be otherwise unlikely to
extradite. The Committee believes that the failure to even
request extradition suggests to the treaty partner, and to the
abductor, that the United States is not serious about pursuing
abductors.
C. EXTRADITION OF NATIONALS
All four of the treaties discussed in this report require
the extradition of nationals. This noteworthy accomplishment
continues an important trend in extradition relationships,
particularly with countries of the civil law tradition. The
Committee applauds this accomplishment, which reflects well
upon State and Justice Department negotiators.
Unfortunately, much remains to be done toward achieving
such progress on other fronts. Although many bilateral
extradition treaties in force today give each party the
discretion to extradite its nationals, few of these treaty
partners do so owing to domestic statutory, constitutional or
political obstacles reflecting civil law traditions of non-
extradition of nationals.
The Committee supports the extradition of U.S. nationals in
most instances. But the Committee remains deeply concerned that
many nations around the world--including nations on our border
or in close proximity--do not readily, if ever, extradite their
nationals to the United States. The Committee expects that U.S.
negotiators will continue to press other nations to agree to
extradite their nationals, including in existing treaty
relationships. The Committee urges the Executive Branch to
emphasize, in discussing new or modernized extradition
relationships with foreign states, that a reciprocal and
essentially unconditional commitment to extradite nationals is
a key desire of the United States.
Concerning Mexico in particular, the Committee recommends
that the Executive Branch approach Mexico's new president at
the appropriate time to inform him of the strong United States
desire to modernize and improve our bilateral extradition
relationship in this area. Concerning the European Union, the
Committee recommends that the Executive Branch redouble its
efforts to improve the performance of our European friends in
this regard.
Finally, unless there are compelling reasons to the
contrary, the Committee maintains that the United States should
never hesitate to request the extradition of a fugitive from a
native country which does not extradite its citizens. The
Committee believes that such requests contribute to progress in
this area, and rightly place the burden of justifying its
refusal on the foreign state.
VII. Explanations of Proposed Treaties
What follow are the article-by-article technical analyses
provided by the Departments of State and Justice regarding the
extradition treaties included in this Report.
Technical Analysis of the Extradition Treaty Between the United States
of America and Belize
On March 30, 2000, the United States signed an Extradition
Treaty Between the Government of the United States of America
and the Government of Belize (the ``Treaty''). In recent years,
the United States has signed similar treaties with many other
countries as part of a highly successful effort to modernize
our law enforcement relations. The new extradition treaty with
Belize is a major step forward in United States efforts to win
the cooperation of countries in combatting organized crime,
transnational terrorism, and international drug trafficking.
It is anticipated that the Treaty will be implemented in
the United States pursuant to the procedural framework provided
by Title 18, United States Code, Section 3184, et seq. No new
implementing legislation will be needed for the United States.
Belize has its own internal legislation on extradition\1\ which
will apply to United States requests under the Treaty. The
Government of Belize will however, need additional implementing
legislation to give the Treaty effect. The Treaty will replace
the Extradition Treaty between the United States of America and
the United Kingdom of Great Britain and Northern Ireland,
signed at London June 8, 1972, which was applicable to Belize
as a former dependency of the United Kingdom.
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\1\ Extradition Act 1870, of 9th August 1870 (hereinafter ``the
Extradition Act of 1870''). The key sections of the Extradition Act of
1870 which are germane to the interpretation and implementation of the
Treaty are discussed in more detail in this Technical Analysis. The
Belize delegation stated that this Act would be amended as necessary to
encompass provisions of this Treaty.
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The following technical analysis of the Treaty has been
prepared by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
history. The technical analysis includes a discussion of U.S.
law and relevant practice as of the date of its preparation,
which are, of course, subject to change. Foreign law
discussions reflect the current state of that law, to the best
of the drafters' knowledge.
Article 1--Obligation to Extradite
The first article of the Treaty, like the first article in
every recent United States extradition treaty, formally
obligates each Party to extradite to the other, subject to the
provisions of the remainder of the Treaty, persons sought for
prosecution or convicted of extraditable offenses. The article
refers to charges ``in'' the Requesting State rather than
``of'' the Requesting State since the obligation to extradite,
in cases arising from the United States, would include state
and local prosecutions as well as federal cases. The term
``convicted'' includes instances in which the person sought has
been found guilty but a sentence has not yet been imposed. The
Treaty clearly applies to persons who have been adjudged guilty
but fled prior to sentencing.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what are extraditable offenses. This treaty, like most recent
United States extradition treaties, makes extraditable any
offense if it is punishable under the laws in both Contracting
States by deprivation of liberty (i.e., imprisonment, or other
form of detention), for a period of more than one year, or by a
more severe penalty such as capital punishment. In addition,
paragraph 1 of Article 2 references a non-exhaustive list or
schedule, annexed to the Treaty as an integral part thereof of
specific offenses for which extradition may be granted provided
that the listed offense is so punishable. Defining extraditable
offenses in terms of ``dual criminality'' obviates the need to
renegotiate the Treaty or supplement it if both countries pass
laws dealing with a new type of criminal activity, or if the
list inadvertently fails to cover a criminal activity
punishable in both countries.
The list of extraditable offenses referenced in paragraph 1
includes most of the offenses which were included in the 1972
U.S.-U.K. treaty, as well as more modern offenses such as those
relating to money laundering, intellectual property, the
environment, taxes, immigration, consumer protection (i.e.,
antitrust and other offenses), and terrorism. This list was
included at the insistence of the Belizean delegation, which
expressed concern that the complete absence of an agreed list
would greatly burden Belizean judges and slow the extradition
process. During the treaty negotiations, the United States
delegation received assurances from the Belizean delegation
that U.S. offenses which basically enhance penalties, such as
operating a continuing criminal enterprise (Title 21, United
States Code, Section 848) and offenses under the racketeering
statutes (Title 18, United States Code, Section 1961-1968),
would be extraditable if the predicate offenses would be
extraditable offenses
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting or conspiring to commit, aiding or abetting,
counseling or procuring the commission of, or otherwise being
an accessory before or after the fact to, an extraditable
offense. Conspiracy charges are frequently used in United
States criminal cases, particularly those involving complex
transnational criminal activity, so it is especially important
that the Treaty be clear on this point. In any event, paragraph
2 creates an exception to the ``dual criminality'' rule of
paragraph 1 by making conspiracy an extraditable crime if the
offense which was the object of the conspiracy is an
extraditable offense.
Paragraph 3 reflects the intention of both countries to
interpret the principles of this article broadly. Judges in
foreign countries are often confused by the fact that many
United States federal statutes require proof of certain
elements (such as use of the mails or interstate
transportation) solely to establish jurisdiction in United
States federal courts. Because these foreign judges know of no
similar requirement in their own criminal law, they
occasionally have denied the extradition of fugitives sought by
the United States on federal charges based on an absence of
dual criminality of such jurisdictional requirements. This
paragraph requires that such jurisdictional elements be
disregarded in applying the dual criminality principle. For
example, Belizean authorities must treat United States mail
fraud charges (Title 18, United States Code, Section 1341) in
the same manner as fraud charges under state laws, and view the
federal crime of interstate transportation of stolen property
(Title 18, United States Code, Section 2314) in the same manner
as unlawful possession of stolen property. This paragraph also
requires a Requested State to disregard differences in the
categorization of the offense in determining whether dual
criminality exists, and to overlook mere differences in the
terminology used to define the offense under the laws of each
country. A similar provision is contained in all recent United
States extradition treaties. Furthermore, number 29 on the list
of offenses annexed to the Treaty makes clear that offenses
relating to fiscal matters, taxes or duties, including tax
evasion or fiscal fraud, shall be extraditable offenses
notwithstanding that the law of the Requested State does not
impose the same kind of tax or duty or does not contain a tax,
duty or customs regulation of the same kind as the law of the
Requesting State. This provision clarifies that revenue-related
offenses need not be based on identical regulations in order to
be extraditable. This provision is inspired by Article 2(3) of
the United Nations Model Extradition Treaty. Similar provisions
appear in other recent U.S. extradition treaties. \2\
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\2\ See, e.g., U.S.-Austria Extradition Treaty, signed at
Washington, January 8, 1998, entered into force January 1, 2000, art.
2(4)(B). /
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Paragraph 4 deals with the fact that in the United States
many federal crimes involve acts committed wholly outside
United States territory. Our jurisprudence recognizes
jurisdiction to prosecute offenses committed outside of the
United States if the crime was intended to, or did, have
effects in this country, or if the legislative history of the
statute shows clear Congressional intent to assert such
jurisdiction.\3\ However, at the time that the treaty was
negotiated, the Belizean Government did not recognize
extraterritorial jurisdiction over offenses. In light of
assurances that Belize would take steps to develop jurisdiction
over extraterritorial matters, the U.S. delegation agreed to
the text of Article 2(4), which provides that extradition shall
be granted for such offenses if the Requested State could
punish an offense committed outside of its territory in similar
circumstances.
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\3\ Restatement (Third) of the Foreign Relations Law of the United
States Sec. 402 (1987); Blakesley, United States Jurisdiction over
Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 1109
(1982).
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Paragraph 5 states that when extradition has been granted
for an extraditable offense, it shall also be granted for any
other offense for which all of the requirements for extradition
have been met except for the requirement that the offense be
punishable by more than one year of imprisonment. For example,
if Belize agrees to extradite to the United States a fugitive
wanted for prosecution on a felony charge, the United States
will also be permitted to obtain extradition for any
misdemeanor offenses that have been charged and included in the
request, as long as those misdemeanors would also be recognized
as criminal offenses in Belize. This practice is generally
desirable from the standpoint of both the fugitive and the
prosecuting country in that it permits all charges against the
fugitive to be disposed of more quickly, thereby facilitating
trials while evidence is still fresh and permitting the
possibility of concurrent sentences. Similar provisions are
found in recent extradition treaties with other countries. \4\
---------------------------------------------------------------------------
\4\ See, e.g., U.S.-Barbados Extradition Treaty, signed at
Bridgetown February 28, 1996, entered into force March 3, 2000, art.
2(5).
---------------------------------------------------------------------------
Article 3--Nationality
Some countries refuse to extradite their own nationals to
other countries for trial or punishment, or are prohibited from
doing so by their statutes or constitution. The United States
does not deny extradition on the basis of the offender's
citizenship, \5\ and Belize's extradition law contains no
exception for Belizean nationals. Therefore, in Article 3 of
the Treaty, each State promises not to refuse extradition on
the ground that the person sought is a national of the
Requested State.
---------------------------------------------------------------------------
\5\ See, generally Shearer, Extradition in International Law 110-
114 (1971); 6 Whiteman, Digest of International Law 871-872 (1968). Our
policy of drawing no distinction between nationals of the United States
and those of other countries in extradition matters is underscored by
Title 18, United States Code, Section 3196, which authorizes the
Secretary of State to extradite U.S. citizens even pursuant to treaties
that permit (but do not require) surrender of citizens, if other
requirements of the Treaty have been met.
---------------------------------------------------------------------------
Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in United
States extradition treaties.
Paragraph 2 describes three categories of offenses which
shall not be considered to be political offenses. Similar
provisions appear in most recent U.S. extradition treaties.
First, the political offense exception does not apply where
there is a murder or other willful crime against the person of
a Head of State of the Contracting States, or a member of the
Head of State's family.
Second, the political offense exception does not apply to
offenses which are included in a multilateral treaty,
convention, or international agreement that requires the
parties to either extradite the person sought or submit the
matter for decision as to prosecution. For example this clause
would apply to the Convention on the Prevention and Punishment
of Crimes Against Internationally Protected Persons, Including
Diplomatic Agents. \6\
---------------------------------------------------------------------------
\6\ Done at New York December 14, 1973, and entered into force
February 20, 1977 (28 UST 1975, TIAS 8532, 1035 UNTS 167).
---------------------------------------------------------------------------
Third, the political offense exception does not apply to
conspiring or attempting to commit, or for aiding and abetting
the commission or attempted commission of, the foregoing
offenses.
Article 4(3) provides that extradition shall not be granted
if the executive authority of the Requested State finds that
the request was politically motivated.\7\ This is consistent
with the longstanding law and practice of the United States,
under which the Secretary of State alone has the discretion to
determine whether an extradition request is based on improper
political motivation.\8\ During negotiations, the Belizean
delegation stated that it will specify in its domestic
legislation concerning extradition that ``executive authority''
means Ministry of Foreign Affairs.
---------------------------------------------------------------------------
\7\ There are similar provisions in many U.S. extradition treaties.
See, e.g., U.S.-India Extradition Treaty, signed at Washington June 25,
1997, entered into force July 21, 1999, art. 5(2).
\8\ See, Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert.
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 744 F. Supp. 904 (D.
Mass. 1990), aff'd, 931 F. 2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\9\
---------------------------------------------------------------------------
\9\ An example of such a crime is desertion. Matter of Extradition
of Suarez-Mason, 694 F. Supp. 676, 702-3 (N.D. Cal. 1988).
---------------------------------------------------------------------------
Article 5--Prior Prosecution
The first paragraph of Article 5 prohibits extradition if
the offender has been convicted or acquitted in the Requested
State for the offense for which extradition is requested, and
is similar to language in many United States extradition
treaties.\10\ This provision applies only if the offender is
convicted or acquitted in the Requested State of exactly the
same crime he is charged with in the Requesting State. It would
not be enough that the same facts were involved. Thus, if an
offender is accused in one State of illegally smuggling
narcotics into the country, and is charged in the other State
of unlawfully exporting the same shipment of drugs out of that
State, an acquittal or conviction in one state would not
insulate the person from extradition to the other, since
different crimes are involved.
---------------------------------------------------------------------------
\10\ See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos
Aires June 10, 1997, entered into force June 13, 2000, art. 5(1).
---------------------------------------------------------------------------
Paragraph 2 makes it clear that neither State can refuse to
extradite an offender on the ground that the Requested State's
authorities declined to prosecute, or instituted criminal
proceedings against the offender and thereafter elected to
discontinue the proceedings. This provision was included
because the decision of the Requested State to forego
prosecution, or to drop charges already filed, may have
resulted from failure to obtain sufficient evidence or
witnesses available for trial, and the Requesting State may not
suffer from the same impediments. This provision should enhance
the ability to extradite to the jurisdiction which has the
better chance of a successful prosecution.
Article 6--Extradition Procedures and Required Documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is similar to
articles in the most recent United States extradition treaties.
The first paragraph requires that each formal request for
extradition be submitted through the diplomatic channel. A
formal extradition request may be preceded by a request for
provisional arrest under Article 9, and provisional arrest
requests need not be initiated through diplomatic channels if
the requirements of Article 9 are met.
Article 6(2) outlines the information which must accompany
every request for extradition under the Treaty. Most of the
items listed in Article 6(2) enable the Requested State to
determine quickly whether extradition is appropriate under the
Treaty. For example, Article 6(2)(c)(i) calls for ``evidence as
to the provisions of the law describing the essential elements
of the offense for which extradition is requested,'' enabling
the requested state to determine easily whether the request
meets the requirement of dual criminality under Article 2.
However, some of the items listed in Article 6(2) are required
strictly for informational purposes so that the Requested State
will be fully informed about the charges in the Requesting
State. Thus, Article 6(2)(c)(iii) calls for ``evidence as to
the provisions of the law describing any time limit on the
prosecution,'' even though Article 8 of the Treaty expressly
states that extradition may not be denied due to lapse of time
for prosecution.
Article 6(3) describes the additional information needed
when the person is sought for trial in the Requesting State.
Article 6(3)(c) requires that if the fugitive is a person who
has not yet been convicted of the crime for which extradition
is requested, the Requesting State must provide ``such evidence
as would be sufficient, according to the law of the Requested
State, to justify committal for trial of the person sought if
the offense of which the person has been accused had been
committed in the Requested State.'' In the United States,
courts require a showing of probable cause to extradite.\11\ In
Belize, courts require a ``prima facie'' showing. The
delegations agreed that the Belize standard is essentially
identical to a showing of probable cause under U.S. law, and
that the language of Article 6(3)(c) should not be interpreted
to require a higher burden of proof for extradition than the
probable cause standard. The Belize delegation said that the
evidence which should be provided to Belize in meeting this
standard consists of: an affidavit by the prosecutor describing
the case and defining the elements of the charged offenses;
sworn statements by some witnesses to the events charged; and
other evidence demonstrating a case against the person, such as
copies of fingerprints and photographs of the person sought,
photographs of the crime scene, copies of some underlying
documentation (demonstrating fraud, for example).
---------------------------------------------------------------------------
\11\ Courts applying Title 18, United States Code, Section 3184,
have long required probable cause for international extradition. See,
Restatement (Third) of the Foreign Relations Law of the United States
Sec. 476, comment b (1987) (``evidence of criminality as would justify
the requested state in holding the accused for trial'').
---------------------------------------------------------------------------
Article 6(4) lists the additional information needed to
extradite a person who has already been convicted of an offense
in the Requesting State. This paragraph makes it clear that
once a conviction has been obtained, the legal standard
required to be met in paragraph 3 is no longer applicable. In
essence, the fact of conviction speaks for itself, a position
taken in recent United States court decisions, even absent a
specific treaty provision.\12\
---------------------------------------------------------------------------
\12\ See, e.g., Spatola v. United States, 741 F.Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991).
---------------------------------------------------------------------------
Article 7--Admissibility of Documents
Article 7 governs the authentication procedures for
documents prepared for use in extradition cases so that they
will be received and admitted as evidence in extradition
proceedings.
The article states that when the United States is the
Requesting State, the documents in support of extradition must
be authenticated by an officer of the United States Department
of State and certified by the principal diplomatic or consular
officer of Belize resident in the United States although the
Belizean delegation stated that this is not necessary under its
domestic law. When the request is from Belize, the documents
must be certified by the principal diplomatic or consular
officer of the United States resident in Belize, consistent
with United States extradition law.\13\
---------------------------------------------------------------------------
\13\ Title 18, United States Code, Section 3190.
---------------------------------------------------------------------------
The third paragraph of the article permits documents to be
admitted into evidence if they are authenticated in any other
manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant to and probative of extradition, and the
Requested State is free under (c) to utilize that information
if it satisfies the ordinary rules of evidence in that state.
This insures that evidence which is acceptable under the
evidentiary rules of the Requested State may be used in
extradition proceedings even if it is not authenticated
pursuant to the Treaty. This paragraph also should insure that
relevant evidence which would normally satisfy the evidentiary
rules of the Requested State is not excluded at the extradition
hearing because of an inadvertent error or omission in the
authentication process.
Article 8--Lapse of Time
Article 8 states that extradition shall not be denied
because of the ``prescriptive laws,'' meaning provisions of the
law regarding lapse of time, in either the Requesting or
Requested States. The U.S. and Belizean delegations agreed that
a claim that the statute of limitations has expired is best
resolved by the courts of the Requesting State after the
fugitive has been extradited.\14\ The Belizean delegation also
stated that, under the laws of Belize, the prosecution of
felonies is never barred by a statute of limitations, except
with regard to certain customs and income tax offenses, which
are controlled by a six-year limitations period.
---------------------------------------------------------------------------
\14\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
---------------------------------------------------------------------------
Article 9--Provisional Arrest
This article describes the process by which a person in one
country may be arrested and detained while formal extradition
papers are being prepared. Similar provisions appear in all
recent U.S. extradition treaties.
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the United States Department of Justice and
the Attorney General in Belize. The provision also indicates
that INTERPOL may be used to transmit such a request.
Experience has shown that the ability to use such direct
channels in emergency situations can be crucial when a fugitive
is poised to flee. Where a request is not made through
diplomatic channels, the Department of Justice expects that
confirmation will be made through diplomatic channels.
Paragraph 2 lists the information which the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must be
advised promptly of the outcome of its application and the
reason for any denial.
Paragraph 4 provides that the fugitive may be released from
detention if the Requesting State does not file a fully
documented request for extradition with the executive authority
of the Requested State within sixty days of the date on which
the person was arrested pursuant to the Treaty. This paragraph
further explicitly insures that arrested persons have a right
of access to the courts; therefore, they can apply for, but not
necessarily be granted, bail. When the United States is the
Requested State, the term ``executive authority'' includes the
Secretary of State or the U.S. Embassy in Belize City, Belize.
Although the person sought may be released from custody if
the documents are not received within the sixty-day period or
any extension thereof, the extradition proceedings against the
fugitive need not be dismissed. Article 9(5) makes it clear
that the person may be taken into custody again and the
extradition proceedings may commence when the formal request is
presented.
Article 10--Decision and Surrender
This article restates the legal standard in article 6 which
must be met before extradition shall be granted: Extradition
shall be granted only if, under the law of the Requested State,
the evidence presented is found sufficient either to justify
the committal for trial of the person sought for prosecution or
to prove that the person is the identical person convicted in
the courts of the Requesting State.
This article also requires that the Requested State
promptly notify the Requesting State through diplomatic
channels of its decision on the extradition request. If
extradition is denied in whole or in part, the Requested State
must provide an explanation of the reasons for the denial. If
extradition is granted, the article requires that the two
States agree on a time and place for surrender of the person.
The Requesting State must remove the fugitive within the time
prescribed by the law of the Requested State, or the person may
be discharged from custody and the Requested State may
subsequently refuse to extradite for the same offense. United
States law permits the person to request release if he has not
been surrendered within two calendar months of having been
found extraditable,\15\ or following the conclusion of any
litigation challenging that finding,\16\ whichever is later.
The law in Belize permits the person to apply to a judge for
release if he has not been surrendered within two months of the
first day on which he could have been extradited.\17\
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\15\ Title 18, United States Code, Section 3188.
\16\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 L.Ed
2d.30 (1963)(decided by Goldberg, J., in chambers). See, also, Liberto
v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 F.2d 105
(5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th Cir.
1978).
\17\ Extradition Act of 1870, Section 12.
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Article 11--Temporary and Deferred Surrender
Occasionally, a person sought for extradition already may
be facing prosecution or serving a sentence in the Requested
State. Article 11 provides a means for the Requested State to
surrender temporarily or defer extradition in such
circumstances until the conclusion of the proceedings against
the person sought and the serving of any punishment that may
have been imposed. Similar provisions appear in our recent
extradition treaties with countries such as Austria, Barbados
and India.
Article 11(1) provides for the temporary surrender of a
person wanted for prosecution in the Requesting State who is
being prosecuted or is serving a sentence in the Requested
State. A person temporarily transferred pursuant to this
provision will be returned to the Requested State at the
conclusion of the proceedings in the Requesting State. Such
temporary surrender furthers the interests of justice in that
it permits trial of the person sought while evidence and
witnesses are more likely to be available, thereby increasing
the likelihood of successful prosecution. Such transfer may
also be advantageous to the person sought in that: (1) it
allows him to resolve the charges sooner; (2) it may make it
possible for him to serve any sentence in the Requesting State
concurrently with the sentence in the Requested State; and (3)
it permits him to defend against the charges while favorable
evidence is fresh and more likely to be available to him.
Article 11(2) provides that the executive authority of the
Requested State may postpone the surrender of a person who is
serving a sentence in the Requested State until the full
execution of the punishment which has been imposed.\18\ The
provision's wording makes it clear that the Requested State may
postpone the initiation of extradition proceedings as well as
the surrender of a person facing prosecution or serving a
sentence.
---------------------------------------------------------------------------
\18\ Under U.S. law and practice, the Secretary of State would make
this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. Mass.
1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
Article 12--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties, and lists some of the factors
which the executive authority of the Requested State must
consider in determining to which country a person should be
surrendered when reviewing requests from two or more States for
the extradition of the same person. For the United States, the
Secretary of State would make this decision.\19\ The Belizean
delegation stated that it would name the Ministry of Foreign
Affairs as its ``executive authority'' under the Treaty.
---------------------------------------------------------------------------
\19\ Cheng Na-Yuet v. Hueston, 734 F.Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
---------------------------------------------------------------------------
Article 13--Seizure and Surrender of Property
This article provides that, to the extent permitted by its
laws, the Requested State may seize and surrender all
property--articles, instruments, objects of value, documents,
or other evidence--relating to the offense for which
extradition is requested. Similar provisions are found in all
recent U.S. extradition treaties. The article also provides
that seized objects may be surrendered to the Requesting State
upon the granting of the extradition or even if extradition
cannot be effected due to the death, disappearance, or escape
of the fugitive.
The second paragraph states that the Requested State may
condition its surrender of property upon satisfactory
assurances that the property will be returned as soon as
practicable, or defer surrender altogether if the property is
needed as evidence in the Requested State. The rights of third
parties to such property must be duly respected.
Article 14--Rule of Speciality
This article covers the principle known as the ``rule of
speciality'' (or ``specialty''), which is a standard aspect of
United States and international extradition practice. Designed
to insure that a fugitive surrendered for one offense is not
tried for other crimes, the rule of specialty prevents a
request for extradition from being used as a subterfuge to
obtain custody of a person for trial or service of sentence on
different charges which may not be extraditable under the
Treaty or properly documented at the time that the request is
granted.
Since a variety of exceptions to the rule of specialty have
developed over the years, this article codifies the current
formulation of the rule by providing that a person extradited
under the Treaty may only be detained, tried, or punished in
the Requesting State: (1) for the offense for which extradition
was granted, or a differently denominated offense based on the
same facts, provided the offense is extraditable or is a lesser
included offense; (2) for offenses committed after the
extradition; and (3) for other offenses for which the executive
authority of the Requested State consents.\20\ Article
14(1)(c)(ii) permits the State which is seeking consent to
pursue additional charges to detain the defendant for 90 days
while the Requested State makes its determination on the
application.
---------------------------------------------------------------------------
\20\ In the United States, the Secretary of State has the authority
to grant such consent. See Berenguer V. Vance, 473 F. Supp. 1195
(D.C.D.C. 1979).
---------------------------------------------------------------------------
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third state without the consent of
the State from which extradition was first obtained.\21\
Consistent with the rule of specialty under international law,
the prior consent of the United States would be required if
Belize were to seek to extradite to an international tribunal,
including the International Criminal Court agreed to in Rome on
July 17, 1998, a fugitive who had been previously extradited
from the United States to Belize.
---------------------------------------------------------------------------
\21\ Thus, the provision is consistent with the provisions of all
recent U.S. extradition treaties.
---------------------------------------------------------------------------
Finally, Paragraph 3 permits the detention, trial, or
punishment of an extraditee for additional offenses, or
extradition to a third State: (1) if the extraditee leaves and
returns to the Requesting State; or (2) if the extraditee does
not leave the Requesting State within ten days of being free to
do so.
Article 15--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings and to expedite their
return to the Requesting State. This article provides that when
a fugitive consents to return to the Requesting State after
being advised by a competent judicial authority of the effect
of such consent under the law of the Requested State, the
person may be returned to the Requesting State without further
proceedings. The Parties anticipate that in such cases there
would be no need for the formal documents described in Article
6 or further judicial proceedings of any kind.
If the person sought returns to the Requesting State before
the Secretary of State signs a surrender warrant, the United
States would not view the waiver of proceedings under this
article as an ``extradition,'' and United States practice has
long been that the rule of specialty does not apply when a
fugitive waives extradition and voluntarily returns to the
Requested State.
Article 16--Transit
Article 16(1) gives each State the power to authorize
transit through its territory of persons being surrendered to
the other country by third countries.\22\ Requests for transit
are to contain a description of the person whose transit is
proposed and a brief statement of the facts of the case with
respect to which he is being surrendered to the Requesting
State. The paragraph permits the request to be transmitted
either through the diplomatic channel, or directly between the
United States Department of Justice and the Attorney General in
Belize, or via INTERPOL channels.
---------------------------------------------------------------------------
\22\ A similar provision is in all recent U.S. extradition
treaties.
---------------------------------------------------------------------------
Under paragraph 2, no advance authorization is needed if
the person in custody is in transit to one of the Parties and
is traveling by aircraft and no landing is scheduled in the
territory of the other Party. Should an unscheduled landing
occur, a request for transit may be required at that time, and
the Requested State may grant the request if, in its
discretion, it is deemed appropriate to do so. The Requested
State is authorized to keep the person in custody for up to 96
hours until a request for transit is received, and thereafter
until transit is effected.
Article 17--Representation and Expenses
The first paragraph of this article provides that the
United States will represent Belize in connection with requests
from Belize for extradition before the courts in this country,
and Belize's Attorney General will arrange for the
representation of the United States in connection with United
States extradition requests to Belize.
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and the translation of documents, which expenses are to be paid
by the Requesting State. Cases may arise in which it may be
necessary for the Requesting State to retain private counsel to
assist in the presentation of the extradition request. It is
anticipated that in such cases the fees of private counsel
retained by the Requesting State must be paid by the Requesting
State.
Paragraph 3 provides that neither State shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, and surrender of the fugitive. This includes any
claim by or on behalf of the fugitive for damages,
reimbursement, or legal fees, or other expenses occasioned by
the execution of the extradition request.
Article 18--Consultation
Article 18 of the Treaty provides that the United States
Department of Justice and the Attorney General's Chambers in
Belize may consult with each other directly with regard to an
individual extradition case or on extradition procedures in
general. A similar provision is found in other recent U.S.
extradition treaties.
Article 19--Application
This Treaty, like most of the other United States
extradition treaties negotiated in the past two decades, is
expressly made retroactive, and covers offenses which occurred
before the Treaty entered into force. It makes clear, however,
that the offense must have been an offense under the laws of
both Contracting States at the time of its commission and that
nothing in the Treaty is to be construed to criminalize any
conduct that was not subject to criminal sanctions at the time
the offense was committed.
Article 20--Ratification and Entry Into Force
This article contains standard treaty language, requiring
ratification and providing for the exchange of instruments of
ratification as soon as possible. The Treaty is to enter into
force immediately upon the exchange.
In Belize, treaties are executive decisions, and need not
be approved by the legislature; however, because the Treaty
affects private rights, it must be given effect by the
legislature via implementing legislation.
Upon entry into force of this Treaty, paragraph 3 provides
that the U.S.-U.K. Extradition Treaty shall cease to have any
effect between the U.S. and Belize although it will remain
applicable to extradition proceedings in which the extradition
documents have already been submitted to the courts in the
Requested State. Articles 14 and 15 of this Treaty shall,
however, apply.
Article 21--Termination
This Article contains the standard treaty language
describing the procedure for termination of the Treaty by
either State. Termination shall become effective six months
after written notice is received.
------
Technical Analysis of the Extradition Treaty Between The Government of
the United States of America and The Government of the Republic of
Paraguay
On November 9, 1998, the United States signed a new
Extradition Treaty Between the Government of the United States
of America and The Government of the Republic of Paraguay
(hereinafter ``the new Treaty'' or ``the Treaty''). The new
Treaty, which will replace the treaty currently in force
between the United States and Paraguay\1\ (hereinafter ``the
1973 treaty''), is part of an ongoing and successful effort to
negotiate with Latin American countries modern agreements to
facilitate the extradition of serious offenders, including
narcotics traffickers, regardless of their nationality.
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\1\ Signed at Asuncion on May 24, 1973, and entered into force on
May 7, 1974; 25 UST 967; TIAS 7838.
---------------------------------------------------------------------------
It is anticipated that the new Treaty will be implemented
in the United States pursuant to the procedural framework
provided by Title 18, United States Code, Section 3184 et seq.
No new implementing legislation will be needed for the United
States. Likewise, the Treaty will be implemented in Paraguay in
accordance with existing Paraguayan extradition law,\2\ and no
additional implementing legislation will be required.
---------------------------------------------------------------------------
\2\ Title XXXIV, Paraguayan Criminal Procedure Code (Codigo de
Procedimientos Penales), Article 590 et seq. The Paraguayan extradition
law is essentially procedural in nature. Relevant provisions of
Paraguayan law are discussed in more detail in this Technical Analysis.
---------------------------------------------------------------------------
The following technical analysis of the new Treaty was
prepared by members of the United States' negotiating
delegation from the Office of International Affairs, Criminal
Division, United States Department of Justice, and the Office
of the Legal Adviser, United States Department of State, based
on the negotiating history. The technical analysis includes a
discussion of U.S. law and relevant practice as of the date of
its preparation, which are, of course subject to change. The
discussion of foreign law reflects the current state of that
law to the best of the drafters' knowledge.
Article I--Agreement to Extradite
Article 1 of the Treaty, like the first article in every
recent United States extradition treaty, formally obligates
each Party to extradite to the other, pursuant to the
provisions of the Treaty, persons sought by authorities in the
Requesting State for trial or punishment for an extraditable
offense.
The negotiating delegations intended that the terms of this
article be interpreted broadly. For example, persons sought
``for trial'' in the United States should include any person
sought for prosecution who is the subject of an outstanding
warrant of arrest for an extraditable offense, regardless of
whether the warrant was issued pursuant to an indictment,
complaint, information, or other lawful means.\3\ The
negotiating delegations also recognized that a large number of
cases involving persons extradited to the United States ``for
trial'' may, in fact, never actually go to trial if the charges
for which extradition is granted are resolved by guilty plea or
other means.
---------------------------------------------------------------------------
\3\ E.g., a bench warrant issued sua sponte by the court for
failure to appear for trial for an extraditable offense.
---------------------------------------------------------------------------
With respect to fugitives from Paraguayan justice, such
persons may not be formally indicted under Paraguayan criminal
procedure until the latter stages of the criminal process
(i.e., at the conclusion of the ``plenario''). Therefore, this
provision is intended to apply to those fugitives from Paraguay
who are ``in process'', i.e., those fugitives whose cases may
not yet have reached the indictment stage, but for whom there
are pending criminal proceedings and outstanding warrants of
arrest.\4\
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\4\ Although this provision is intended to enable extradition from
the United States to Paraguay of a person who is the subject of a
Paraguayan warrant of arrest (orden de prision) and whose appearance in
Paraguay is sought as a necessary step for subjecting such person to
criminal prosecution, it is not intended to enable extradition of a
person whose appearance has been ordered for the sole purpose of giving
testimony.
---------------------------------------------------------------------------
The negotiating delegations also agreed that the term
``punishment'' in this Article includes not only instances in
which the person sought has been sentenced, but also those
situations in which such person has been adjudged guilty,
either by trial or plea, but a sentence has not yet been
imposed.\5\
---------------------------------------------------------------------------
\5\ See, Stanbrook and Stanbrook, Extradition: The Law and
Practice, 25-26 (1979). This situation arises most often when a person
pleads guilty to an offense in the United States and is allowed to
remain free on bond pending sentencing, but flees prior to, and fails
to appear as ordered for, his or her sentencing.
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This Article also refers to persons sought by authorities
``in'' the Requesting State rather than ``of'' the Requesting
State, since the obligation to extradite, in cases arising from
the United States, would apply to fugitives from state and
local justice, as well as those wanted by federal authorities.
Article II--Extraditable Offenses
This Article contains the basic guidelines for determining
what offenses are extraditable. Like such articles in other
recent United States extradition treaties, it does not list the
offenses for which extradition may be granted. Instead,
paragraph 1 of this Article permits extradition for any offense
punishable under the laws in both countries by deprivation of
liberty (i.e., imprisonment or other form of detention) for a
maximum period of more than one year, or by a more severe
penalty such as capital punishment).\6\ The term ``maximum
period'' was included to ensure that, in regard to offenses
whose potential penalties are described in terms of a range
(e.g., 6 months to 3 years of imprisonment), the Requested
State would look only to the maximum potential penalty in
determining whether the offense meets the requirement of being
punishable by more than one year imprisonment.
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\6\ During the negotiations, the Paraguayan delegation indicated
that, under Paraguayan law, key offenses such as drug trafficking
(including continuing criminal enterprises), drug and non-drug related
money laundering, terrorism, and organized criminal activity (RICO), as
well as certain tax, export, and environmental crimes, would meet the
requirements of Article 2(1) and thus be extraditable offenses. Escape
also would be an extraditable offense, provided that it involves more
than one person and the use of force.
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Defining extraditable offenses in terms of ``dual
criminality'' rather than attempting to list in the Treaty each
extraditable crime obviates the need to renegotiate, amend, or
supplement the Treaty if the countries later enact laws dealing
with new types of criminal activity, or if the list
inadvertently fails to cover important types of criminal
activity already punishable in both countries. Under the dual
criminality approach, once criminal laws are enacted in both
countries to punish a certain type of activity by more than one
year of imprisonment, then that criminal activity automatically
is included as a an extraditable offense.
In regard to a request for a person who has already been
sentenced in the Requesting State, paragraph 2 of this Article
contains an additional requirement that such person must have
more than six months of his or her sentence still to serve.\7\
Provisions of this kind are not preferred by U.S. negotiating
teams, but they do appear in some U.S. extradition treaties.\8\
In this Treaty, the Paraguayan delegation insisted on its
inclusion.\9\
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\7\ It was the understanding of the negotiating delegations that
the six month period referred in this provision relates to the
incarceration portion of the sentence, and not to any post-confinement
supervised release period. Accordingly, the person sought must have at
least six months left to serve in custody, regardless of whether a
combination of the incarceration and supervised release periods of the
sentence would amount to more than six months.
\8\ See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos
Aires June 10, 1997, entered into force June 15, 2000, art. 2(1).
\9\ Foreign delegations, particularly those from civil law
countries such as Paraguay, sometimes insist on provisions of this
kind, in part because such language is included in the U.N. model
treaty. In addition, it is not uncommon for persons to spend several
months in custody pending extradition, and, subject to the laws of the
Requesting State, they may receive, upon their surrender, credit toward
the completion of their sentence for the time spent in foreign custody.
The Paraguayan delegation insisted on a provision of this kind also in
part because, in their view, it is difficult to justify the expense of
pursuing the extradition of a person who will likely be released
immediately upon or soon after his or her surrender to the Requesting
State.
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Paragraph 3 follows the practice of recent extradition
treaties in expressly providing that extradition also shall be
granted for conspiring or attempting to commit, or otherwise
participating in,\10\ the commission of an extraditable
offense. Foreign laws often do not define conspiracy or
participation in an offense in the same way as U.S. law.\11\
Moreover, foreign laws may provide much less severe penalties
for an attempt or conspiracy than they do for the offense that
is the object of such attempt or conspiracy.\12\ Accordingly,
it is important that the Treaty be clear that these inchoate
offenses are extraditable, especially since they are frequently
a part of United States criminal cases, including those
involving complex transnational criminal activity.
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\10\ 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, Title 18, United States
Code, Sections 2 and 3.
\11\ In fact, Paraguayan law does not penalize the offense of
``conspiracy,'' per se. Accordingly, the term ``conspiracy'' is
translated in the Spanish text of the Treaty as ``association to commit
an offense,'' which is the closest analogue to conspiracy under
Paraguayan law. The Paraguayan delegation assured the U.S. delegation
that the U.S. offense of ``conspiracy'' would be extraditable under
this definition.
\12\ Note that the language of paragraph 3 does not require that
the conspiracy, attempt, or participation, in itself, satisfy the dual
criminality or penalty requirements of paragraph 1 so long as the
offense that was the object of such attempt, conspiracy, etc., does so.
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Paragraph 4 further reflects the intention of both
countries to interpret the principles of this Article broadly.
Paragraph 4(a) requires the Requested State to disregard
differences in the categorization of the offense in determining
whether dual criminality exists and to overlook mere
differences in the terminology used to define the offense under
the laws in each country. Provisions similar to paragraph 4(a)
are contained in all recent United States extradition treaties.
Paragraph 4(b) is also included to further prevent
technical differences in Paraguayan and United States law from
creating obstacles to extradition. Judges in foreign countries
are often confused by the fact that many United States federal
statutes require proof of certain elements (such as use of the
mails or interstate transportation) solely to establish
jurisdiction in the United States federal courts. Because there
is no similar requirement in their own country's criminal law,
foreign judges occasionally have denied, for a perceived lack
of dual criminality, U.S. requests for the extradition of
fugitives charged under these federal statutes. Therefore,
paragraph 4(b) requires that such elements be disregarded in
applying the dual criminality principle. For example,
Paraguayan authorities must treat United States mail fraud
charges (Title 18, United States Code, Section 1341) in the
same manner as fraud charges under state laws and view the
federal crime of interstate transportation of stolen property
(Title 18, United States Code, Section 2314) in the same manner
as unlawful possession of stolen property.
By providing that extradition shall be granted for offenses
even when the illegal acts constituting the offense are
committed outside the territory of the Requesting State,
Paragraph 5 of this Article is particularly important in
ensuring that the Treaty makes extraditable many significant
types of modern transnational criminal activity. United States
jurisprudence recognizes jurisdiction in U.S. courts to
prosecute an offense committed outside the United States if the
crime was intended to, or did, have effects in this country, or
if the legislative history of the statute shows clear
Congressional intent to assert extraterritorial
jurisdiction.\13\ As a result, many federal statutes (including
drug laws) criminalize acts committed wholly outside United
States territory. To encompass these crimes, the United States
initially proposed language for the Treaty stating that
extradition shall be granted for an extraditable offense
regardless of where the act or acts constituting the offense
were committed. The Paraguayan delegation rejected the initial
proposal but was persuaded to accept an alternative
formulation. This alternative formulation, set forth in
paragraph 5, not only provides for extradition for offenses
committed in whole or in part in the territory of the
Requesting State, but also for offenses committed outside the
territory of the Requesting State if the offenses have effects
in the territory of the Requesting State.\14\ In addition,
paragraph 5 provides for the extraditability of
extraterritorial offenses based on other theories of
jurisdiction, provided that the laws of the Requested State
would recognize jurisdiction over such an offense under similar
circumstances.\15\ Accordingly, paragraph 5 will enable the
United States to obtain extradition for a broad range of
criminal activity, including narcotics trafficking and
terrorism, which frequently is initiated or orchestrated from
abroad.
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\13\ Restatement (Third) of the Foreign Relations Law of the United
States Sec. 402 (1987); Blakesley, United States Jurisdiction Over
Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 1109
(1982).
\14\ The formulation contained in this Treaty is almost identical
to that contained in Article 2 of the 1997 U.S.-Argentina extradition
treaty.
\15\ Paraguayan law recognizes extraterritorial jurisdiction for
certain crimes against the interests or integrity of the State or
committed by Paraguayan nationals abroad. Paraguayan law also expressly
recognizes jurisdiction over certain international crimes committed
abroad, including terrorism and drug trafficking. See, Paraguayan Penal
Code, Articles 7-9.
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Paragraph 6 of this Article establishes that when
extradition has been granted for an extraditable offense, it
shall also be granted for other less serious offenses in the
request with which the person is charged, but which, standing
alone, would not be extraditable for the sole reason that they
are not punishable by more than one year of imprisonment. Thus,
if Paraguay agrees to extradite to the United States a fugitive
wanted for prosecution on a felony charge, the United States
will also be permitted to obtain extradition for any
misdemeanor offense charged and specified in the request, so
long as the misdemeanor would also be recognized as a criminal
offense in Paraguay, and all other requirements of the Treaty
(except the penalty requirement of Article 2(1)) are met. This
provision, which is consistent with recent United States
extradition practice, is generally desirable from the
standpoint of both the fugitive and the prosecuting country. It
permits all charges against the fugitive to be disposed of more
quickly and efficiently, by facilitating either plea
agreements, when appropriate, or trials while evidence is still
fresh, and by permitting the possibility of concurrent
sentences. Similar provisions are found in many recent United
States extradition treaties.\16\
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\16\ See, e.g., U.S.-Barbados Extradition Treaty, signed at
Bridgetown February 28, 1996, entered into force March 3, 2000, art.
2(5).
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Article III--Extradition of Nationals
Article 3 provides that extradition shall not be refused on
the ground that the person sought is a national of the
Requested State.
Some countries refuse to extradite their own nationals to
other countries for trial or punishment, or are prohibited from
doing so by their statutes or constitutions. The United States
does not deny extradition on the basis of the offender's
citizenship,\17\ and Paraguay's extradition law and its
Constitution contain no exception for Paraguayan nationals.
Therefore, in Article 3 of the Treaty, each State promises not
to refuse extradition on the ground that the person sought is a
national of the Requested State.
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\17\ See, generally, Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). Our
policy of drawing no distinction between nationals of the United States
and those of other countries in extradition matters is underscored by
Title 18, United State Code, Section 3196, which authorizes the
Secretary of State to extradite U.S. citizens even pursuant to treaties
that permit (but do not require) surrender of citizens, if other
requirements of the Treaty have been met.
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This provision is very similar to the provision contained
in the new extradition treaty with Argentina,\18\ and in other
modern U.S. extradition treaties.
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\18\ U.S.-Argentina Extradition Treaty, signed at Buenos Aires June
10, 1997, entered into force June 15, 2000, art. 3. Compare, U.S.-
Bolivia Extradition Treaty, signed at La Paz June 27, 1995, entered
into force November 21, 1996, art. III, which mandates the extradition
of nationals in connection with specified offenses.
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Although Paraguay has no constitutional provision or
statute that expressly prohibits the extradition of Paraguayan
nationals, the 1973 Treaty does not affirmatively obligate
either party to extradite its nationals to the other, and
Paraguay has never extradited one of its nationals to the
United States. Accordingly, the U.S. delegation made it clear
from the outset of these negotiations that a provision
requiring the extradition of nationals was an indispensable
part of a modern extradition relationship. The Paraguay
delegation agreed, and it is anticipated that this Article will
greatly improve the ability of the United States to secure the
extradition of Paraguayan nationals.
Article IV--Bases for Denial of Extradition
Paragraph 1 of this Article begins with a general rule that
prohibits extradition for political offenses. This principle is
commonly known as the ``political offense exception'' to
extradition.\19\
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\19\ The provision in this article is typical in that it does not
attempt to define what constitutes a political offense (although it
does set forth certain offenses that are not political offenses). As a
result, the requested country must determine, based solely on its
domestic law, whether a particular extradition request should be denied
on this basis. Because the Treaty does not provide otherwise, the
judiciary decides whether the political offense exception will bar
extradition in a particular case. Eain v. Wilkes, 641 F.2d 504, 513
(7th Cir. 1981).
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Notwithstanding this general rule, paragraph 1 continues
with a description of several categories of offenses that are
not to be considered political offenses. The provisions
included in paragraph 1 of this Article are common in United
States extradition treaties.
First, paragraph 1(a) provides that the political offense
exception shall not apply to an attack or other willful crime
against the physical integrity of a Head of State of the United
States or Paraguay or members of their families. This is the
so-called ``attentat clause,'' which first began appearing in
extradition treaties in the early 1900s in order to preclude
lenient treatment of anarchists and assassins of Heads of
State.
Second, paragraph 1(b) states that the political offense
exception shall not apply to offenses for which both Parties
have the obligation to extradite or submit the case for
decision as to prosecution pursuant to a multilateral treaty
such as the Convention for the Suppression of Unlawful Seizure
of Aircraft (Hijacking).\20\
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\20\ Done at the Hague December 16, 1970; entered into force
October 14, 1971 (22 UST 1641; TIAS 7192).
---------------------------------------------------------------------------
Finally, paragraph 1(c) states that the political offense
exception shall not apply to an attempt to commit, a conspiracy
or illicit association to commit, or participation in the
commission of, the offenses in subparagraphs (a) and (b).
Paragraph 2 states that extradition shall not be granted if
the competent authority of the Requested State determines that
the extradition request was politically motivated. 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, as reflected in
Article XIX.\21\
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\21\ Article XIX also records Paraguayan practice, under which
political motivation is determined by the judiciary.
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Paragraph 4 of this Article states that the Requested State
may refuse extradition if the request relates to an offense
under military law which would not be an offense under ordinary
criminal law.\22\ This also is a common provision in United
States extradition treaties.
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\22\ Examples of such offenses are desertion and disobedience of
orders. See, Matter of Suarez-Mason, 694 F.Supp. 676, 703 (N.D.Cal.
1988).
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Most recent U.S. extradition treaties contain a provision
addressing the relevance of a statute of limitations. Ideally,
in the interest of limiting technical bases for the denial of
extradition, the Treaty would expressly state that the decision
whether to extradite shall be made without regard to the
statute of limitations of either the Requesting or Requested
States, leaving the interpretation of the Requesting State's
laws involving such procedural obstacles to prosecution to the
appropriate authorities of the Requesting State. The Paraguay
delegation would not agree, however, to a provision that did
not prohibit extradition on the basis of the expiration of the
Requested State's statute of limitations.\23\ Accordingly, the
U.S. delegation determined, and the Paraguayan delegation
agreed, that the best solution under those circumstances would
be for the Treaty to remain silent on the issue. By omitting
any reference to lapse of time, the U.S. delegation intended
that, at least in the context of extradition proceedings in the
United States, the decision whether to extradite would be made
without regard to the statute of limitations of either the
Requesting or Requested State. While current extradition
practice in Paraguay is to deny extradition in cases where
Paraguay's statute of limitations would have expired if the
crime had been committed there, the Paraguayan delegation
confirmed that absence of language to this effect in the Treaty
leaves open the possibility of greater flexibility on a case-
by-case basis. In any event, the omission is an improvement
over the 1973 Treaty, which expressly provides that extradition
shall be refused if the statute of limitations of either the
Requesting or Requested State has expired.
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\23\ Consideration of the Paraguayan statute of limitations in the
decision whether to grant a U.S. request for extradition could hinder
the United States' ability to secure the return of fugitives in some
cases. Like many countries throughout the world, Paraguayan lapse of
time provisions are tied to the maximum applicable penalty for the
offense, and although Paraguayan law enumerates certain circumstances
under which the running of the prescription period is interrupted, it
does not, as in U.S. law, toll the statute permanently upon the filing
of an indictment or for as long as the defendant remains a fugitive.
Moreover, unlike the United States, all offenses, even murder, are
subject to a prescriptive period. Subject to various interruptions and
depending upon the offense, Paraguayan law requires that a person be
prosecuted and punished within 3 to 15 years of the date of the
criminal conduct. Even if interrupted, however, in no event may a
person be prosecuted or punished after the time equal to double the
prescription period for the offense has passed. For example, under
Paraguayan law, a person wanted for first degree murder must, in any
event, be prosecuted and have served his or her sentence within 30
years of the date of the offense.
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Article V--Prior Prosecution
Paragraph 1 of this Article prohibits extradition if the
person sought has been convicted or acquitted in the Requested
State for the offense for which extradition is requested,\24\
and its language is similar to that contained in many U.S.
extradition treaties.\25\ This paragraph 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.\26\
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\24\ The express use of the phrase ``convicted or acquitted'' in
this paragraph prevents the Requested State from refusing extradition
on the basis that it has unilaterally immunized the fugitive from
prosecution by pardon or granting of clemency. Moreover, nothing in
this provision enables the Requested State to bar extradition on the
grounds that the person sought has been convicted or acquitted in a
third State.
\25\ See, e.g., U.S.-India Extradition Treaty, signed at Washington
June 25, 1997, entered into force July 21, 1999, article 5(2).
\26\ The term ``offense'' in this provision means the crime, not
``the act'' for which extradition is requested. A single set of facts
may result in several different offenses being charged in different
jurisdictions, and prosecution for one such offense would not bar
extradition for another. For example, a narcotics trafficker could be
charged in Country A with exporting drugs and in Country B with
importing drugs based on one illegal shipment from Country A to Country
B. This interpretation is consistent with the overarching goal of the
Treaty to expand, rather than limit, the scope of extraditable
offenses.
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Paragraph 2 of this Article makes clear that extradition
shall not be precluded by the fact that the Requested State's
authorities have not instituted criminal proceedings against
the person sought for the same offense for which extradition is
requested. Moreover, paragraph 2 would permit extradition in
situations in which the Requested State instituted such
criminal proceedings, but thereafter elected to discontinue the
proceedings, provided that the laws of the Requested State
regarding double jeopardy would permit their future re-
institution.\27\ This provision should enhance the ability to
extradite criminals to the jurisdiction which has the better
chance of a successful prosecution.
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\27\ This provision is intended to make clear that extradition
shall not be precluded by the mere fact that the fugitive is being
proceeded against in the Requested State since the case is not yet
resolved. If the Requested State is prosecuting the fugitive for the
same offense for which extradition is requested, the Requested State
should, pursuant to Article XII of this Treaty, defer extradition until
the domestic proceedings are over. Then the Requested State can decide,
based on the result of the domestic proceedings, whether to deny the
extradition request because of a conviction or acquittal (in accordance
with paragraph 1 of this Article), or to grant extradition if the
charges were resolved in a manner that does not implicate double
jeopardy (such as dismissal without prejudice). Absent these provisions
in Articles V and XII, a Requested State could charge a fugitive with
the same offense for which his or her extradition is sought, then deny
the extradition request due to a pending local prosecution, and finally
dismiss its domestic case--allowing the fugitive to escape prosecution
altogether.
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Article VI--Death Penalty
Paragraph 1 of this Article permits the Requested State to
refuse extradition in cases in which the offense for which
extradition is sought is punishable by death in the Requesting
State but is not punishable by death in the Requested State,
unless the Requesting State provides assurances that the death
penalty, if imposed, will not be carried out. Similar
provisions are found in many recent United States extradition
treaties.\28\
---------------------------------------------------------------------------
\28\ See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos
Aires June 10, 1997, entered into force June 15, 2000, art.6.
---------------------------------------------------------------------------
Paragraph 2 provides that when the Requesting State gives
assurances in accordance with paragraph 1, the assurances shall
be respected, and the death penalty, if imposed, shall not be
carried out.
The Paraguayan delegation insisted on the inclusion of this
Article in the Treaty because Paraguay has abolished the death
penalty. However, if Paraguay ever reestablishes the death
penalty, this Article will not prevent the United States from
securing extradition for a capital offense provided that the
offense is subject to capital punishment in both states.
Article VII--Extradition Procedures and Required Documents
This Article sets forth the appropriate means of
transmitting an extradition request and the required
documentation and evidence to be submitted in support thereof.
It is similar to those in corresponding articles in the United
States' most recent extradition treaties.
Paragraph 1 of this Article requires that all requests for
extradition be submitted in writing through the diplomatic
channel. Paragraph 2 outlines the information that must
accompany every request for extradition under the Treaty.
Paragraph 3 describes the information needed, in addition to
the requirements of paragraph 2, when the person is sought for
prosecution in the Requesting State. Paragraph 4 describes the
information needed, in addition to the requirements of
paragraph 2, when the person sought has already been convicted
in the Requesting State.
Most of the items listed in paragraph 2 enable the
authorities of the Requested State to determine quickly whether
extradition is appropriate under the Treaty. For example, the
``information describing the facts of the offense'' and ``the
text of the law describing the elements of, and applicable
penalty for, the offense for which extradition is requested''
enable the Requested State to make a preliminary determination
whether the dual criminality provision of Article 2 of the
Treaty appear to be met. Other items, such as the physical
description, identity information, and probable location of the
fugitive, assist the Requested State in locating and
apprehending the fugitive, and in proving his or her identity
at the extradition hearing.
Paragraph 3 requires that if the fugitive is a person
sought for prosecution the Requesting State must provide: (a) a
copy of the warrant or order of arrest; (b) a copy of the
charging document, if any; \29\ and (c) ``information or
evidence that provides a reasonable basis to believe that the
person sought committed the offense for which extradition is
requested.'' The language in paragraph 3(c) is consistent with
fundamental extradition jurisprudence in the United States, in
that it will be interpreted to require that Paraguay provide
such information as is necessary to establish ``probable
cause.'' \30\ The Paraguayan delegation explained that this
provision would comport with Paraguay's minimum standard of
proof required for pretrial detention, which, similar to the
U.S. probable cause standard, is a reasonableness test that
requires a judge to find sufficient indications or ``indicios
suficientes'' to believe that a person is responsible for an
offense.\31\
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\29\ As noted in the analysis of Article 1 above, under Paraguayan
criminal procedure, a formal indictment is not normally filed until the
latter stages of the prosecution after the accused is brought before a
Paraguayan court. In recognition of those instances in which Paraguay
might seek the extradition of a person for whom an indictment has not
yet been filed, the negotiating delegations agreed to include the
phrase, ``if any.''
\30\ United States Courts considering foreign extradition requests
in accordance with Title 18, United States Code, Section 3184, have
long required probable cause for international extradition. Ex Parte
Bryant, 167 U.S. 104, 105 (1897); Restatement (Third) of the Foreign
Relations Law of the United States Sec. 476, comment b (1987).
\31\ See, Article 337, Paraguayan Criminal Procedure Code (1997).
The Paraguayan delegation advised that their courts could interpret the
term ``committal for trial,'' sometimes used in U.S. extradition
treaties, to require a much higher standard of proof, akin to a prima
facie showing of guilt, that is required for a formal indictment at the
latter stages of the Paraguayan criminal process. Accordingly, the
delegations agreed to include the reasonable basis language to ensure
that the courts of both the United States and Paraguay would apply a
similar standard of proof in extradition cases.
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Paragraph 4 describes the information needed, in addition
to that required by paragraph 2, when the person sought has
already been convicted in the Requesting State. Paragraph 4(a)
applies if Paraguay is the Requesting State, and paragraph 4(b)
applies if the United States is the Requesting State. The two
subparagraphs contain essentially the same requirements, but
were separated at the request of the Paraguayan delegation to
avoid any confusion due to differences in Paraguayan and U.S.
criminal procedure. For example, the difference in wording
between 4(a)(i) and 4(b)(i) reflects the fact that in Paraguay
a person is found guilty and sentenced at the same proceeding,
from which such documentation always issues. In the United
States, on the other hand, a person may be found guilty without
having yet been sentenced.
Both subparagraphs (a) and (b) make clear that once a
conviction has been obtained, no showing of probable cause is
required. In essence, the fact of conviction speaks for itself,
a position taken in United States court decisions, even without
a specific treaty provision.\32\
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\32\ See, e.g., Spatola v. United States, 741 F.Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F.Supp. 976 (D.Vt. 1979).
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Finally, both subparagraphs (a) and (b) require that the
Requesting State provide information regarding the extent to
which the sentence, if imposed, has been carried out. This
information is relevant to the requirement in Article II(2)
that the person sought have more than six months sentence left
to be served.
Article VIII--Translation
This Article is a standard treaty provision which requires
that all documents submitted in support of an extradition
request must be translated into the language of the Requested
State. Thus, requests by Paraguay to the United States will be
translated into English and requests by the United States to
Paraguay will be translated into Spanish.
Article IX--Admissibility of Documents
This Article governs the certification and authentication
procedures for documents accompanying an extradition request.
It states that the documents shall be received and admitted as
evidence in extradition proceedings if certified or
authenticated by the appropriate accredited diplomatic or
consular officer of the Requested State resident in the
Requesting State.\33\ They are also to be admitted if certified
or authenticated in any other manner accepted by the laws in
the Requested State. For example, there may be information in
the Requested State itself that is relevant and probative to
extradition, and the Requested State is free under subsection
(c) to utilize that information if the information satisfies
the ordinary rules of evidence in that state. This insures that
evidence that is acceptable under the evidentiary rules of the
Requested State may be used in extradition proceedings even if
it is not authenticated pursuant to other provisions of the
treaty. This provision should also insure that relevant
evidence, which would normally satisfy the evidentiary rules of
the requested country, is not excluded at the extradition
hearing because of an inadvertent error or omission in the
authentication process.
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\33\ This provision is consistent with requirements imposed by
United States law. For the United States the ``appropriate diplomatic
or consular officer would be the ``principal'' diplomatic or consular
officer of the U.S. Embassy in Asunci"n, Paraguay. See, Title 18,
United States Code, Section 3190. Since Paraguayan law does not,
however, require that the diplomatic or consular officer be the
``principal'' one, the term ``appropriate'' was included. This will
render less onerous for U.S. officials the task of obtaining
authentication or certification of extradition requests to Paraguay.
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Article X--Provisional Arrest
This Article describes the process by which a person may be
arrested and detained in the Requested State while the
extradition documents required by Article VII are being
prepared and translated in the Requesting State, a process
which normally may take a number of weeks. Provisional arrest
serves the interests of justice by allowing for the
apprehension of fugitives who pose a risk of flight or danger
to the community. Similar articles are included in all modern
U.S. extradition treaties.
Paragraph 1 provides that provisional arrest is reserved
for cases of urgency pending presentation of the extradition
request and that a provisional arrest request shall be
transmitted by any written means either through the diplomatic
channel or directly between the United States Department of
Justice and the Paraguayan Ministry of Foreign Relations.
Paragraph 2 sets forth the information that the Requesting
State must provide in support of a provisional arrest request.
This paragraph makes it clear that the State requesting
provisional arrest need not submit copies of the arrest
warrant, judgment of conviction, or other documentary evidence
which would be necessary in the full extradition request.
Paragraph 3 requires that the Requesting State must be
promptly notified of the disposition of the provisional arrest
request.
Paragraph 4 provides that a fugitive who has been
provisionally arrested may be released from custody if the
Requested State does not receive the fully documented request
for extradition within sixty (60) days from the date of the
fugitive's provisional arrest.
Finally, paragraph 5 makes clear that a person released
under paragraph 4 may be taken into custody again and the
extradition proceedings recommenced if the formal request is
received at a later date.
Article XI--Decision and Surrender
Paragraph 1 of this Article requires that the Requested
State promptly notify the Requesting State of its decision on
the extradition request.
Paragraph 2 requires that, if extradition is denied in
whole or in part, the Requested State must provide a reasoned
explanation for the denial and, upon request, copies of the
pertinent judicial decisions in the case.
Paragraph 3 provides that if extradition is granted, the
Parties shall agree on the date and place of the extraditee's
surrender. Paragraph 4, states, however, that if the extraditee
is not removed from the territory of the Requested State within
two months from the date of the judicial decision of
extraditability (or, in the event that the extraditee initiates
a legal challenge to such decision, two months from the date of
the conclusion of the legal challenge) then the Requesting
State risks the release of the extraditee from custody and
subsequent refusal of extradition for the same offense.\34\
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\34\ This provision is intended to comport with U.S. statutory
requirements and judicial interpretations thereof. See, Title 18,
United States Code, Section 3188. See, also, Jimenez v. United States
District Court, 84 S.Ct. 14 (1963) (decided by Goldberg, J., in
chambers); Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United
States, 713 F.2d 105 (5th Cir. 1983); Barrett v. United States, 590
F.2d 624 (6th Cir. 1978); and McElvy v. Civiletti, 523 F.Supp. 42, 47
(S.D.Fla. 1981). Paraguayan law is silent on the time before which an
extraditee must be removed from Paraguayan territory.
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Article XII--Temporary and Deferred Surrenders
Occasionally, a person who is the subject of a foreign
extradition request may, at the same time, be facing
prosecution on domestic charges or serving a sentence in the
Requested State. Article XII provides a means for the Requested
State to temporarily surrender the person sought to the
Requesting State for the purpose of prosecution or, in the
alternative, to defer extradition in such cases until the
conclusion of the Requested State's proceedings against the
person sought and the service of any sentence that may be
imposed in connection therewith. Similar provisions appear in
recent United States extradition treaties.
Paragraph 1 of Article XII provides for the temporary
surrender of a person wanted for prosecution in the Requesting
State who is being prosecuted or is serving a sentence in the
Requested State. A person temporarily transferred pursuant to
this provision will be kept in custody while in the Requesting
State, and will be returned to the Requested State at the
conclusion of the proceedings in the Requesting State. Such
temporary surrender furthers the interests of justice in that
it permits the Requesting State to try the person sought while
evidence and witnesses are more likely to be available, thereby
increasing the likelihood of successful prosecution. Such
transfer may also be advantageous to the person sought in that:
(1) 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.
Notwithstanding the above, temporary surrender may not
always be feasible, especially if it would significantly
interfere with or impede the ongoing criminal proceedings in
the Requested State. Accordingly, paragraph 2 of this Article
provides that the Requested State may opt to postpone the
surrender of a person who is being prosecuted or serving a
sentence in the Requested State until the conclusion of the
prosecution or the completion of the service of any sentence
imposed.\35\ Paragraph 3 provides that, if surrender is
postponed, such postponement shall suspend the running of the
statute of limitations in the Requesting State for the offenses
for which extradition is sought.\36\
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\35\ Under U.S. law and practice, the Secretary of State would make
the decision to temporarily surrender the fugitive or to defer the
surrender. Koskotas v. Roche, 740 F.Supp. 904, 920 (D.Mass. 1990),
aff'd, 931 F.2d 169 (1st Cir. 1991).
\36\ This provision was included at the insistence of and for the
sole benefit of Paraguay, whose negotiating delegation wished to ensure
that the postponement of the surrender of Paraguayan fugitives by the
United States would not jeopardize Paraguay's ability to prosecute
those fugitives upon their eventual surrender to Paraguay. Under U.S.
law, in contrast, the statute of limitations is suspended upon the
filing of an indictment or other charging document. See, e.g., Title
18, United States Code, section 3282.
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Article XIII--Multiple Requests
From time to time, a State will receive concurrent requests
from two or more other States for the extradition of the same
person, and thus the Requested State must decide to which of
the Requesting States to surrender the person. In such
situations where one of the Parties to this Treaty, the United
States or Paraguay, is the Requested State, and the other Party
to this Treaty is one of the Requesting States, Article XIII
sets forth some of the factors that the Requested State shall
consider in determining to which country the person should be
surrendered.
This Article makes clear that the Requested State is not
limited to the factors enumerated therein but should consider
all relevant factors in weighing its decision to which State to
surrender the person sought.
For the United States, the Executive Branch will make the
decision to which country the person should be surrendered in
accordance with this Article and Article XIX.\37\ The
Paraguayan delegation advised that, for Paraguay, the competent
authority would be the judicial branch.
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\37\ Under U.S. law, the appropriate authority within the executive
branch is the Secretary of State. Cheng Na-Yuet v. Hueston, 734 F.Supp.
988 (S.D.Fla. 1990), aff'd, 932 F.2d 977 (11th Cir. 1991).
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Article XIV--Seizure and Surrender of Property
At the time of their arrest in the Requested State for the
purpose of extradition, persons are often in possession of
property which may represent the proceeds, instrumentalities,
or other evidence of the offenses of which they are accused in
the Requesting State. The Requesting State has an interest in
having this property surrendered with the fugitive upon his
extradition, so that the property may be used in the
prosecution of the person sought, returned to the victims, or
otherwise disposed of appropriately.
Accordingly, paragraph 1 of this Article provides that to
the extent permitted by the law in the Requested State, all
articles, documents, and evidence connected with the offense
for which extradition is granted may be seized and surrendered
to the Requesting State. Paragraph 1 further provides that the
surrender of such property may occur even if extradition cannot
be effected due to the death, disappearance, or escape of the
person sought.
Notwithstanding the above, paragraph 2 provides that the
Requested State may condition the surrender of the property
upon assurances from the Requesting State that the property
will be returned as soon as practicable and without cost to the
Requested State. Alternatively, the Requested State may defer
the surrender of the property if it is needed as evidence in
that State.
Finally, paragraph 3 provides that the obligation to
surrender property under this provision shall be subject to due
respect for the rights of third parties in such property.
Article XV--Rule of Speciality and Extradition to Third States
This Article covers the principle known as the rule of
speciality (or ``specialty''), which is a standard aspect of
U.S. and international extradition practice. Generally, the
rule of specialty prohibits the prosecution of an extraditee
for offenses other than those for which extradition was
granted. By limiting prosecution to those offenses for which
extradition was granted, the rule is intended to prevent a
request for extradition from being used as a subterfuge to
obtain custody of a person for trial or service of sentence on
different charges that may not be extraditable under the Treaty
or properly documented at the time that the request is granted.
A variety of exceptions to the general rule have developed over
the years, and this Article sets forth the current formulation
of the rule and its established exceptions.
Paragraph 1 of this Article provides that a person
extradited under the Treaty may not be detained, tried, or
punished in the Requesting State except for: (1) an offense for
which extradition was granted, or a lesser included or
differently denominated offense, provided that it is based on
the same facts on which extradition was granted; \38\ (2) an
offense committed after extradition; or (3) any offense for
which the competent authority of the Requested State gives
consent.\39\ Paragraph 1 also provides that, in cases where
such consent is sought, the Requested State may require the
submission of the supporting documentation called for in
Article VII and the State seeking the consent may detain the
person for ninety days, or such longer period of time as the
Requested State may authorize, while the request for consent is
being processed.
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\38\ Allowing the Requesting State to proceed on a ``lesser
included or differently denominated offense'' provides both the
prosecution and defense with a measure of post-extradition flexibility
to resolve the charges. For example, it allows the defendant to plead
to or be convicted at trial of a less serious offense, or it allows the
prosecution to supersede the original charges with different charges
that, because of a change in circumstances may be more readily
provable, so long as they are based on the same facts as the offenses
for which extradition was granted.
\39\ As provided in Article XIX, in the United States, the
Secretary of State has the authority to consent. See, Berenguer v.
Vance, 473 F.Supp. 1195, 1199 (D.D.C. 1979).
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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.\40\
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\40\ 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. Consistent with the rule of
specialty under international law, the prior consent of the United
States would also be required if Paraguay were to seek to extradite to
an international tribunal, including the International Criminal Court
agreed to in Rome on July 17, 1998, a fugitive who had been previously
extradited from the United States to Paraguay. 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.
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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 twenty
days of being free to do so.\41\
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\41\ The policy behind paragraph 3 is that an extraditee should not
be allowed to benefit from the rule of specialty indefinitely and
remain in or return to the Requesting State with impunity. Under this
paragraph, if the extraditee chooses to return to or remain in the
Requesting State, he or she effectively relinquishes the benefits of
the rule. See, e.g., United States v. Rauscher, 119 U.S. 407, 430
(1886); 112 ALR Fed. 473, Sec. 28; 6 M. Whiteman, Digest of
International Law, Ch. XVI, Sec. 46 at 1100, 1105-6; and Restatement
(Third) of Foreign Relations Law of the United States, Sec. 477,
Comment e.
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Article XVI--Simplified Extradition Procedures
Persons sought for extradition frequently elect to expedite
their return to the Requesting State by consenting to their
surrender and waiving their right to extradition proceedings in
the Requested State.\42\ This Article provides that when a
fugitive consents to surrender to the Requesting State, the
person may be returned to the Requesting State as expeditiously
as possible without further proceedings. Such consent must be
given before a judicial authority of the Requested State. The
Parties anticipate that in such cases there would be no need
for the formal documents described in Article VII, or further
judicial or administrative proceedings of any kind.
Furthermore, in the case where the person sought elects to
return voluntarily to the Requesting State under this Article,
the process would not be deemed an ``extradition,'' and
therefore the rule of specialty in Article XV would not apply.
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\42\ This ``waiver of extradition'' benefits fugitives in that it
allows them to return forthwith to resolve the charges against them in
the Requesting State and to spend as little time as possible in custody
in the Requested State. It also saves the judicial and law enforcement
authorities of the Requested State the significant expense associated
with prolonged extradition proceedings.
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Article XVII--Transit
At times, law enforcement authorities escorting a
surrendered person to the State where he is wanted for trial or
punishment are unable to take such person directly from the
surrendering State to the receiving State and must make a stop,
scheduled or unscheduled, in another State. This Article
governs those situations in which one Party to this Treaty is
the receiving State and the other Party is the State through
which the surrendered person must transit.\43\
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\43\ A similar provision is in all recent U.S. extradition
treaties.
---------------------------------------------------------------------------
Paragraph 1 of this Article gives each Party the power to
authorize transit through its territory of persons being
surrendered to the other Party by a third country. Requests for
transit under this Article are to be transmitted through the
diplomatic channel or directly between the United States
Department of Justice and the Paraguayan Ministry of Foreign
Relations. Transit requests must contain a description of the
person being transported and a brief statement of the facts of
the case upon which the extradition is based. Paragraph 1 also
provides that the person in transit may be detained in custody
during the period of transit.
Paragraph 2 states that no authorization is needed if air
transportation is being used and no landing is scheduled in the
territory of the other Party. If an unscheduled landing occurs
in the territory of a Party, that Party may require a request
as provided in paragraph 1 of this Article. If such request is
required, it shall be provided within ninety-six hours of the
unscheduled landing, and the person in transit may be detained
until the transit is effected.
Paragraph 3 makes clear that a request for transit may be
denied if the transit would prejudice the essential interests
of the Party that receives such a request. The U.S. negotiating
delegation considers this paragraph to be superfluous because
the authorization of the transit of an extraditee under this
Article already is clearly discretionary, and, accordingly, may
be denied by the Party receiving a transit request for any
reason such Party deems appropriate. This paragraph was
included, however, at the insistence of the Paraguayan
delegation.
Article XVIII--Representation and Expenses
Paragraph 1 of this Article provides that the Requested
State shall advise, assist, and, to the fullest extent
permitted by its law, represent the Requesting State in
extradition proceedings in the Requested State. In accordance
with established practice, the Department of Justice will
represent Paraguay in all aspects of extradition proceedings in
the United States. Likewise, Paraguayan prosecutors (fiscales)
will represent the interests of the United States in such
proceedings in Paraguay. Specifically, in a typical case, a
fiscal will issue an opinion to the Paraguayan extradition
court with a legal analysis of the case and a recommendation
that the U.S. request be granted. In cases in which the
extradition court denies the U.S. request, the fiscal can then
appeal that decision to a higher court.
Paragraph 2 provides that the Requesting State will bear
expenses of extradition relating to the translation of
documents and the transportation of a fugitive to the
Requesting State. The Requested State shall pay all other
expenses incurred in that State by reason of the extradition
proceedings. This is a standard provision in U.S. extradition
treaties.
Paragraph 3 provides that neither State shall make any
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention, custody,
examination, or surrender of the fugitive. This includes any
claim by or on behalf of the fugitive for damages,
reimbursement, or legal fees, or other expenses occasioned by
the execution of the extradition request.\44\
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\44\ This also is a standard provision in all modern U.S.
extradition treaties.
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Article XIX--Competent Authority
The term ``competent authority'' is used in Articles IV(2),
XIII, and XV(1)(c) of the Treaty in connection with the
Requested State's decisions concerning: (1) whether an
extradition request is politically motivated; (2) to which
State to surrender a fugitive in the face of concurrent
extradition requests from two or more States; and (3) whether
to consent to a surrendered person's subsequent prosecution in
the Requesting State for offenses other than those for which
extradition was granted. Article XIX addresses the fact that
during the course of negotiations it became clear that, under
the respective extradition practices in the United States and
Paraguay, a different governmental authority would make such
decisions for the United States than would for Paraguay.
Under United States law and practice, it is well-
established that the executive branch is the competent
authority for making such decisions. On the other hand, under
Paraguayan practice, such decisions traditionally have been
made by the judiciary. Accordingly, this Article simply states
that, for the United States, the term ``competent authority'',
as used in the Treaty, means the appropriate authorities of the
executive branch, and the same term, for Paraguay, means its
appropriate judicial authorities. Because this Article is
entirely consistent with current practices in the United States
and Paraguay, it neither expands nor diminishes the powers of
the executive or judiciary in either country beyond that which
is already recognized.
Article XX--Consultation
This Article provides that the Parties may consult with
each other in connection with the processing of individual
extradition cases and in furtherance of maintaining and
improving procedures for the implementation of the Treaty. This
is a standard provision in modern U.S. extradition treaties and
serves the interests of the United States in promoting close
cooperation with foreign counterparts on extradition issues.
Article XXI--Application
This Article, like its counterparts in many of the other
United States extradition treaties negotiated in the past two
decades, expressly makes the Treaty retroactive to cover
offenses that occurred before, as well as after, it enters into
force so long as the conduct constituted an offense under the
law in both parties at the time it occurred.
Article XXII--Ratification and Entry Into Force
This Article contains standard treaty provisions regarding
the ratification and entry into force of the Treaty. Paragraph
1 provides that the Treaty shall be subject to ratification,
and that instruments of ratification shall be exchanged at
Asunci"n as soon as possible. Paragraph 2 provides that the
Treaty will enter into force upon the exchange of the
instruments of ratification. Paragraph 3 of this Article
provides that the 1973 treaty shall cease to be in effect upon
entry into force of this Treaty. Nevertheless, the 1973 treaty
shall continue to apply to extradition proceedings in which
extradition documents have already been submitted to the courts
of the Requested State when the new Treaty enters into force.
Paragraph 3 contains an additional caveat, however, that
Article XVI of this Treaty (Simplified Extradition Procedures)
shall apply to such proceedings.
Article XXIII--Termination
The final Article of the Treaty contains standard treaty
language for the termination of the Treaty by either Party
through written notice to the other Party, and states that
termination shall become effective six months after the date of
such notice.
------
Technical Analysis of the Treaty Between the United States of America
and the Republic of South Africa on Extradition
On September 16, 1999, the United States signed an
Extradition Treaty Between the Government of the United States
of America and the Government of the Republic of South Africa
(``the Treaty'') that is intended to replace the outdated
treaty currently in force between the two countries
1 with a modern agreement on the extradition of
fugitives. The new extradition treaty is the second modern
extradition treaty that the United States has negotiated with a
sub-Saharan African country in the past fifty years, and it
represents a major step forward in United States efforts to
strengthen cooperation with countries in the region in
combating terrorism, organized crime, drug trafficking, and
other offenses.
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\1\ Treaty Relating to the Reciprocal Extradition of Criminals,
signed at Washington December 18, 1947, entered into force April 30,
1951 (2 UST 884, TIAS 2243, 148 UNTS 85).
---------------------------------------------------------------------------
It is anticipated that the Treaty will be implemented in
the United States pursuant to the procedural framework provided
by Title 18, United States Code, Section 3184 et seq. No new
implementing legislation will be needed for the United States.
South Africa has its own internal legislation on extradition
2 which will apply to United States' requests under
the treaty.
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\2\ Extradition Act, Law No. 67 of 1962 hereinafter ``Extradition
Act 1962''). The key sections of the Extradition Act 1962 which are
germane to the interpretation and implementation of the Treaty are
discussed in more detail in this Technical Analysis. The South African
delegation said that under Article 231 of South Africa's Constitution,
a treaty such as this as normally brought into force has the force and
effect of law in South Africa unless the treaty is inconsistent with
the Constitution or an Act of Parliament. Thus, the terms of this
Treaty would be overridden by any inconsistent internal law, apparently
including pre-existing law, unless the treaty is enacted into law in
national legislation. (Such enactment would be the functional
equivalent of implementing legislation identical to the Treaty's
terms). This is important because South Africa's law does contain some
provisions that are inconsistent with the Treaty. For instance, Section
11(b) of the Extradition Act 1962 gives the Minister of Justice broad
discretion to deny extradition if `` * * * he or she is satisfied that
by reason of the trivial nature of the offence or by reason of the
surrender not being in the interests of justice or that for any other
reason it would be unjust or unreasonable or too severe a punishment to
surrender the person concerned * * * .'' The U.S. delegation made it
clear that the United States would consider it a breach of the Treaty
if South Africa were to rely on this statute to deny extradition on
grounds that are not contained in the Treaty. The South African
delegation assured us that South Africa takes its treaty obligations
seriously, and agreed to consider the U.S. recommendation that this
Treaty be brought into force by enactment into law to ensure that the
Treaty would supersede any earlier, inconsistent legislation.
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The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
history. The technical analysis includes a discussion of U.S.
law and relevant practice as of the date of its preparation,
which are, of course, subject to change. Foreign law
discussions reflect the current state of that law, to the best
of the drafters' knowledge.
Article 1--Obligation to Extradite
The first article of the Treaty, like the first article in
every recent United States extradition treaty, formally
obligates each Party to extradite to the other persons sought
for prosecution or convicted of an extraditable offense,
subject to the provisions of the remainder of the Treaty. The
article refers to charges ``in'' the Requesting State rather
than ``of'' the Requesting State, since the obligation to
extradite, in cases arising from the United States, would
include state and local prosecutions as well as federal cases.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what offenses are extraditable. The Treaty, like most recent
United States extradition treaties, does not list the offenses
for which extradition may be granted. Instead, paragraph 1 of
the article makes an offense extraditable if it is punishable
under the laws of both countries by deprivation of liberty
(i.e., imprisonment, or other form of detention), for a period
of at least one year, or by a more severe penalty such as
capital punishment. Defining extraditable offenses in terms of
``dual criminality'' rather than attempting to list each
extraditable crime obviates the need to renegotiate the Treaty
or supplement it if both countries pass laws dealing with a new
type of criminal activity, or if the list inadvertently fails
to cover a criminal activity punishable in both countries.
During the negotiations, the United States delegation
received assurances from South Africa that extradition would be
possible for such high priority offenses as drug trafficking
(including operating a continuing criminal enterprise, in
violation of Title 21, United States Code, Section 848);
offenses under the racketeering statutes (Title 18, United
States Code, Section 1961-1968); money laundering; terrorism;
crimes against environmental protection laws; and many
antitrust violations.
Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting or conspiring to commit, aiding, abetting,
inducing, counseling or procuring the commission of, or
otherwise being an accessory before or after the fact to, an
extraditable offense. Conspiracy charges are frequently used in
United States criminal cases, particularly those involving
complex transnational criminal activity, so it is especially
important that the treaty be clear on this point. The South
African delegation indicated that there is a statutory
provision for conspiracy in South African law, similar to Title
18, United States Code, Section 371. 3 In any event,
paragraph 2 creates an exception to the ``dual criminality''
rule of paragraph 1 by making conspiracy an extraditable crime
if the offense which was the object of the conspiracy is an
extraditable offense.
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\3\ Act No. 17 of 1956; Hosten Edwards Nathan Rosman, Introduction
to South African Law and Legal Theory 712-713 (1977).
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Paragraph 3 reflects the intention of both countries to
interpret the principles of this article broadly. Judges in
foreign countries are often confused by the fact that many U.S.
federal statutes require proof of certain elements (such as use
of the mails or interstate transportation) solely to establish
jurisdiction in the U.S. federal courts. Because these foreign
judges know of no similar requirement in their own criminal
law, they occasionally have denied the extradition of fugitives
sought by the United States on federal charges on this basis.
This paragraph requires that such elements be disregarded in
applying the dual criminality principle. For example, South
African authorities must treat U.S. mail fraud charges (Title
18, United States Code, Section 1341) in the same manner as
fraud charges under state laws, and view the federal crime of
interstate transportation of stolen property (Title 18, United
States Code, Section 2314) in the same manner as unlawful
possession of stolen property under state law. This paragraph
also requires the Requested State to disregard differences in
the categorization of the offense in determining whether dual
criminality exists, and to overlook mere differences in the
terminology used to define the offense under the laws of each
country. A similar provision is contained in all recent United
States extradition treaties.
Paragraph 4 deals with the fact that many federal crimes
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes jurisdiction in U.S. courts to
prosecute offenses committed outside of the United States if
the crime was intended to, or did, have effects in this
country, or if the legislative history of the statute shows
clear Congressional intent to assert such jurisdiction.
4 In South Africa, however, the Government's ability
to prosecute extraterritorial offenses is much more limited.
Article 2(4) reflects South Africa's agreement to recognize
United States jurisdiction to prosecute offenses committed
outside of the United States if South Africa's law would permit
it to prosecute similar offenses committed outside its
territory in similar circumstances. If the Requested State's
laws do not provide for such jurisdiction, the final sentence
of the paragraph provides the executive authority of the
Requested State with discretion to grant extradition.
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\4\ Restatement (Third) of the Foreign Relations Law of the United
States, Section 402 (1987); Blakesley, ``United States Jurisdiction
over Extraterritorial Crime,'' 73 Journal of Criminal Law and
Criminology 1109 (1982).
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Paragraph 5 states that extradition shall be granted for
persons convicted of but not yet sentenced for extraditable
offenses, and of persons convicted of and sentenced for
extraditable offenses. The negotiators intended to make it
clear that the Treaty, like other modern extradition treaties,
applies to persons who have been adjudged guilty but fled prior
to sentencing as well as to those who have fled after
sentencing but before completing service of their sentence.
5
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\5\ See, Stanbrook and Stanbrook, Extradition: The Law and
Practice, 25-26 (1979).
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Paragraph 6 states that when extradition has been sought
for an offense against a law relating to taxation, customs
duties, exchange control, or other revenue matters, it shall
not be refused on the ground that the Requested State does not
have a tax, customs duty, or exchange regulation of the same
kind as that in the Requesting State. Similar to paragraphs
3(a) and 3(b) of this article, this provision clarifies that
revenue-related offenses, which are still subject to the
general dual criminality requirement of this article, need not
be based on identical regulations in order to be extraditable.
This provision is inspired by Article 2(3) of the United
Nations Model Extradition Treaty, and memorializes the fact
that South Africa and the U.S. both extradite for tax and
fiscal offenses. Similar provisions appear in other recent U.S.
extradition treaties. 6
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\6\ See, e.g., U.S.-Austria Extradition Treaty, signed at
Washington, January 8, 1998, entered into force January 1, 2000, art.
2(4)(b).
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Paragraph 7 states that when extradition has been granted
for an extraditable offense it shall also be granted for any
other offense for which all of the requirements for extradition
have been met except for the requirement that the offense be
punishable by at least one year of imprisonment. For example,
if South Africa agrees to extradite to the United States a
fugitive wanted for prosecution on a felony charge, the United
States will also be permitted to obtain extradition for any
misdemeanor offenses with which the fugitive has been charged,
as long as those misdemeanors would also be recognized as
criminal offenses in South Africa and other requirements for
extradition are met. This practice is generally desirable from
the standpoint of both the fugitive and the prosecuting country
in that it permits all charges against the fugitive to be
disposed of more quickly, thereby facilitating trials while
evidence is still fresh and permitting the possibility of
concurrent sentences. Similar provisions are found in other
recent extradition treaties. 7
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\7\ See, e.g., U.S.-Barbados Extradition Treaty, signed at
Bridgetown February 28, 1996, entered into force March 3, 2000, art.
2(5).
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Article 3--Nationality
Some countries refuse to extradite their own nationals to
other countries for trial or punishment, or are prohibited from
doing so by their statutes or constitution. The United States
does not deny extradition on the basis of the offender's
citizenship, 8 and South Africa's extradition law
contains no exception for South African nationals. Therefore,
in Article 3 of the Treaty, each State promises that
extradition shall not be refused on the ground of the
nationality of the person sought. 9
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\8\ See, generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). The
U.S. Government's policy of drawing no distinction between nationals of
the United States and those of other countries in extradition matters
is underscored by Title 18, United States Code, Section 3196, which
authorizes the Secretary of State to extradite U.S. citizens even
pursuant to treaties that permit (but do not require) surrender of
citizens, if other requirements of the Treaty have been met.
\9\ A similar provision appears in other recent U.S. treaties, many
of which state that extradition shall not be refused ``on the ground
that the person sought is a national of the Requested State.'' The
South African treaty has slightly different wording intended to convey
the idea that nothing with respect to the nationality of the person
sought, regardless of the country involved, can be used to deny
extradition.
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Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in U.S.
extradition treaties.
Paragraph 2 describes five categories of offenses which
shall not be considered to be political offenses.
First, the political offense exception does not apply where
there is a murder or other violent crime against the person of
a Head of State or Deputy Head of State of the Requesting or
Requested State, or a member of such person's family. This
clause covers a Deputy Head of State because in South Africa
the Deputy Head of State acts as Head of State in the Head of
State's absence or incapacity.
Second, the political offense exception does not apply to
offenses which are included in a multilateral treaty,
convention, or international agreement which requires the
parties to either extradite the person sought or submit the
matter for decision as to prosecution including, for instance,
the Convention for the Suppression of Unlawful Seizures of
Aircraft, done at the Hague on 16 December 1970 (entered into
force for South Africa 29 June 1972), 22 UST 1641, TIAS 7192.
The third and fourth categories of exceptions establish
that the political offense exception does not apply to any
offense that constitutes murder, or an offense involving
kidnapping, abduction, or any form of unlawful detention,
including the taking of a hostage. 10
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\10\ Similar exceptions are found in our extradition treaties with
countries including the United Kingdom and Hungary. See, Supplemental
Treaty Concerning the Extradition Treaty Between the United States and
the United Kingdom, signed at Washington June 25, 1985, entered into
force December 23, 1986, art. 1; U.S.-Hungary Extradition Treaty,
signed at Budapest December 1, 1994, entered into force March 18, 1997,
art. 4.
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Finally, the political offense exception does not apply to
conspiring or attempting to commit, or for aiding, abetting,
inducing, counseling or procuring the commission of, or being
an accessory before or after the fact to, the foregoing
offenses.
Paragraph 3 provides that notwithstanding Paragraph 2,
extradition shall not be granted if the executive authority of
the Requested State determines that there are substantial
grounds for believing that the request was made for the purpose
of prosecuting or punishing the person sought on account of
that person's gender, race, religion, nationality, or political
opinion. 11 This paragraph is based on South African
law, 12 and is consistent with the longstanding law
and practice of the United States, under which the Secretary of
State alone has the discretion to determine whether an
extradition request is based on improper political motivation.
13
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\11\ There are similar provisions in a number of U.S. extradition
treaties. See, e.g., U.S.-Jamaica Extradition Treaty, signed at
Kingston June 14, 1983, entered into force September 24, 1984, art.
III(3).
\12\ Section 11(b)(iv), Extradition Act 1962.
\13\ See, Eain v. Wilkes, 641 F.2d 504, 513-518 (7th Cir.) cert.
denied 454 U.S. 894 (1981); Koskotos v. Roche, 744 F. Supp. 904 (D.
Mass. 1990), aff'd 931 F. 2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
The final paragraph of the article states that the
executive authority of the Requested State shall refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.
14
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\14\ An example of such a crime is desertion. Matter of Extradition
of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 1988). Most
recent U.S. extradition treaties permit extradition to be denied for
military offenses of this kind, but do not require denial. South Africa
insisted that its practice is to treat denial of extradition as
mandatory in these cases. Cf. Art. 3(c), United Nations Model
Extradition Treaty Article 3(c), 30 I.L.M. 1407 (1991)
---------------------------------------------------------------------------
Article 5--Capital Punishment
Paragraph 1 permits the Requested State to refuse
extradition in cases in which the offense for which extradition
is sought is punishable by death in the Requesting State, but
is not punishable by death in the Requested State, unless the
Requesting State provides assurances that the death penalty
will not be imposed or, if imposed, will not be carried out.
Similar provisions are found in many recent United States
extradition treaties. 15
---------------------------------------------------------------------------
\15\ See, e.g., U.S.-Austria Extradition Treaty, signed at
Washington January 8, 1998, entered into force January 1, 2000, art. 8.
---------------------------------------------------------------------------
Paragraph 2 provides that when the Requesting State gives
assurances in accordance with paragraph 1, the assurances shall
be respected, and the death penalty, if imposed, shall not be
carried out.
The South African delegation insisted on this provision
because South Africa has abolished the death penalty. Its
extradition law is silent on the topic, but the delegation felt
that South African courts might conclude that it is
unconstitutional to extradite a person to the United States to
face capital punishment when such punishment could not lawfully
be imposed in South Africa.
Article 6--Non Bis in Idem
The first paragraph of Article 6 prohibits extradition if
the offender has been convicted or acquitted in the Requested
State for the offense for which extradition is requested, and
is similar to language present in many United States
extradition treaties. 16 The delegations agreed that
this provision applies only if the offender is convicted or
acquitted in the Requested State of exactly the same crime he
is charged with in the Requesting State. It would not be enough
that the same facts were involved. Thus, if an offender is
accused in one State of illegally smuggling narcotics into the
country, and is charged in the other State of unlawfully
exporting the same shipment of drugs out of that State, an
acquittal or conviction in either of the States would not
insulate the person from extradition to the other, since
different crimes are involved.
---------------------------------------------------------------------------
\16\ See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos
Aires June 10, 1997, entered into force June 15, 2000, art. 5(1).
---------------------------------------------------------------------------
Paragraph 2 makes it clear that neither State can refuse to
extradite an offender on the ground that the Requested State's
authorities declined to prosecute the offender, or instituted
criminal proceedings against the offender and thereafter
elected to discontinue the proceedings, provided that the
discontinuance does not constitute an acquittal, or the
authorities merely decided to investigate. This provision was
included because the decision of the Requested State to forego
prosecution, or to drop charges already filed, may have
resulted, for example, from failure to obtain sufficient
evidence or witnesses available for trial, and the Requesting
State may not suffer from the same impediments. This provision
should enhance the ability to extradite to the jurisdiction
which has the better chance of a successful prosecution.
Article 7--Temporary and Deferred Surrender
Occasionally, a person sought for extradition may be
already facing prosecution or serving a sentence on other
charges in the Requested State. Article 7 provides a means for
the Requested State to temporarily surrender or defer
extradition in such circumstances until the conclusion of the
proceedings against the person sought and the service of any
punishment that may have been imposed. Similar provisions
appear in our recent extradition treaties with countries such
as Austria, Barbados and India.
Paragraph 1 provides that the executive authority of the
Requested State may postpone the surrender of a person who is
serving a sentence in the Requested State until the full
execution of the punishment which has been imposed.
17 The provision's wording makes it clear that the
Requested State may postpone the initiation of extradition
proceedings as well as the surrender of a person facing
prosecution or serving a sentence. 18
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\17\ Under U.S. law and practice, the Secretary of State would make
this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D. Mass.
1990), aff'd 931 F.2d 169 (1st Cir. 1991).
\18\ Thus, the treaty provides more flexibility than Article 4 of
the 1947 U.S.-South Africa Treaty, which flatly requires that
extradition be deferred until the conclusion of the trial and the full
execution of any punishment awarded * * * ''
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Paragraph 2 provides that a person wanted for prosecution
in the Requesting State who is being prosecuted or is serving a
sentence in the Requested State may be surrendered temporarily.
A person temporarily transferred pursuant to this provision
will be returned to the Requested State at the conclusion of
the proceedings in the Requesting State. Such temporary
surrender furthers the interests of justice in that it permits
trial of the person sought while evidence and witnesses are
more likely to be available, thereby increasing the likelihood
of successful prosecution. Such transfer may also be
advantageous to the person sought in that: (1) it allows him to
resolve the charges sooner; (2) it may make it possible for him
to serve any sentence in the Requesting State concurrently with
the sentence in the Requested State; and (3) it permits him to
defend against the charges while favorable evidence is fresh
and more likely to be available to him.
Article 8--Lapse of Time
Article 8 states that extradition shall not be granted when
the prosecution has become barred by lapse of time according to
the law of the Requesting State. 19 Similar
provisions are found in recent U.S. extradition treaties with
Austria, India, Poland, Spain, and other countries. This
provision must be read together with Article 9(2)(d), which
states that the documents in support of each extradition
request must contain a statement from the Requesting State
describing the applicable lapse of time provisions in that
State, and that statement will be conclusive proof of whether
the prosecution has become barred by lapse of time.
---------------------------------------------------------------------------
\19\ The treaty now in force requires that extradition be denied if
the statute of limitations has run or would have run in either the
Requesting or Requested State. Article 5, U.S.-South Africa Treaty,
supra, note 1, even though neither U.S. law or South Africa's
Extradition Act 1962 requires this rule. In fact, it is settled law in
the United States that lapse of time is not a defense to extradition at
all unless the treaty specifically provides to the contrary. Freedman
v. United States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States
v. Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
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Article 9--Extradition Procedures and Required Documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is generally
similar to articles in the most recent United States
extradition treaties.
The first paragraph requires that all requests for
extradition be made in writing and submitted through the
diplomatic channel. A formal extradition request may be
preceded by a request for provisional arrest under Article 13,
and provisional arrest requests need not be initiated through
diplomatic channels if the requirements of Article 13 have been
satisfied.
Paragraph 2 outlines the information which must accompany
every request for extradition under the Treaty. Most of the
items listed in this paragraph enable the Requested State to
determine quickly whether extradition is appropriate under the
treaty. For example, Article 9(2)(c) calls for ``a statement or
text of the relevant law prescribing maximum punishment for the
offence(s)'' enabling the requested state to determine easily
whether the request satisfies the requirement for dual
criminality under Article 2.
Paragraph 3 describes the additional information needed
when the person is sought for trial in the Requesting State.
Paragraph 3(c) requires that if the fugitive is a person who
has not yet been convicted of the crime for which extradition
is requested, the Requesting State must provide ``such
information as would justify committal for extradition under
the laws of the Requested State, but neither State is required
to establish a prima facie case.'' This is consistent with
extradition law in the United States, and is similar to
language in other United States extradition treaties.
20 This provision will alleviate one of the major
practical problems with extradition from South Africa. The
Treaty currently in force permits extradition only if `` * * *
the evidence be found sufficient, according to the law of the
High Contracting Party applied to, * * * to justify the
committal of the prisoner for trial, in case the crime has been
committed in the territory of such High Contracting Party * * *
'' South African courts have interpreted this clause to require
that a prima facie case against the defendant be proven in
South Africa before extradition will be granted. By contrast,
U.S. law permits extradition if there is probable cause to
believe that an extraditable offense was committed and the
offender committed it. 21 South Africa's agreement
to extradite under the new Treaty based on the lower probable
cause standard eliminates this imbalance in the burden of proof
for extradition, and should dramatically improve the United
States' ability to extradite from South Africa.
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\20\ See, e.g., U.S.-Jordan Extradition Treaty, signed at
Washington March 28, 1995, entered into force June 29, 1995, art.
8(3)(c).
\21\ Courts applying Title 18, United States Code, Section 3184
have long required probable cause for international extradition.
Restatement (Third) of the Foreign Relations Law of the United States
Section 476, comment b.
---------------------------------------------------------------------------
Paragraph 4 lists the information, in addition to the
requirements of paragraph 2, needed to extradite a person who
has already been convicted of an offense in the Requesting
State. This paragraph makes it clear that once a conviction has
been obtained, no showing of probable cause is required. In
essence, the fact of conviction speaks for itself, a position
taken in recent United States court decisions, even absent a
specific treaty provision. 22
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\22\ See, e.g., Spatola v. United States, 741 F.Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F.Supp. 976 (D.VT. 1979).
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Article 10--Admissibility of Documents
Article 10 governs the authentication procedures for
documents prepared for use in extradition cases.
The article states that in the case of a request from the
United States, the documents must be received in evidence at
extradition proceedings if they are accompanied by an apostille
or authenticated by the signature and seal of office of either
certain South African diplomatic or consular officers, or
certain specified government authorities of the United States
or other authorized persons. The provision is based on the
provisions of South African extradition law. 23
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\23\ Section 9(3), Extradition Act 1962.
---------------------------------------------------------------------------
The second paragraph states that when the request is from
South Africa, the documents must be certified by the principal
diplomatic or consular officer of the United States resident in
South Africa, consistent with United States extradition law.
24
---------------------------------------------------------------------------
\24\ Title 18, United States Code, Section 3190.
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The third subparagraph of the article requires documents to
be admitted into evidence if they are authenticated in any
other manner acceptable by the laws in the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition, and the
Requested State is free under subsection (c) to utilize that
information if the information satisfies the ordinary rules of
evidence in that state. This insures that evidence which is
acceptable under the evidentiary rules of the Requested State
may be used in extradition proceedings even if it is not
authenticated pursuant to other provisions of the treaty. This
paragraph also should insure that relevant evidence, which
would normally satisfy the evidentiary rules of the requested
country, is not excluded at the extradition hearing because of
an inadvertent error or omission in the authentication process.
Article 11--Translation
This article requires that any document that is not in
English and is produced in relation to extradition proceedings
under this Treaty shall be accompanied by a translation in
English. South Africa has eleven official languages: English,
Afrikaans, Zulu, Xhosa, Sotho, Venda, Tswana, Tsonga, Pedi,
Shangan, and Ndebele. It was decided that it would be more
convenient for both Parties if extradition documents were
prepared in English in all cases.
Article 12--Additional Information
This article states that if the Requested State considers
the information furnished in support of the request for
extradition insufficient under its law with respect to
extradition, it shall notify the Requesting State so that it
may submit supplementary information; the Requested State may
establish a reasonable length of time for such submission.
Paragraph three then provides that nothing shall prevent the
executive authority of the Requested State from presenting to a
court of that State such supplemental material sought or
obtained after its initial submission or after expiration of
any time limit established by it. This article is intended to
permit the Requesting State to cure defects in the request and
accompanying materials that are found by a court in the
Requesting State or by the attorney acting on behalf of the
Requesting State, and to permit the court, in appropriate
cases, to grant a reasonable continuance to obtain, translate,
and transmit additional materials. A similar provision is found
in other United States extradition treaties. 25
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\25\ See, e.g., U.S.-Costa Rica Extradition Treaty, signed at San
Jose December 4, 1982, entered into force October 11, 1991, art. 10.
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Article 13--Provisional Arrest
This article describes the process by which a person in one
country may be arrested and detained while the formal
extradition papers are being prepared.
Paragraph 1 expressly provides that a request for
provisional arrest may be made through the diplomatic channel
or directly between the Departments of Justice in the United
States and South Africa. The provision also indicates that
Interpol may be used to transmit such a request, and that the
application may also be transmitted via post, telegraph,
telefax, or any other means, such as email. Experience has
shown that the ability to use such direct channels can be
crucial in emergency situations.
Paragraph 2 states the information which the Requesting
State must provide in support of such a request.
Paragraph 3 states that prompt attention shall be given to
the provisional arrest application, and the Requesting State
must be notified promptly of the outcome of its application
and, if applicable, the reason for any inability to proceed
with the application.
Paragraph 4 provides that the person who has been
provisionally arrested may be released if the Requesting State
does not file a fully documented request for extradition with
the executive authority of the Requested State within sixty
days of the date on which the person was arrested. The
paragraph also specifies that receipt of the documents by the
Embassy of the Requested State located in the Requesting State
(i.e., for a U.S. request, receipt by the South African embassy
in Washington, D.C.) shall constitute receipt by the executive
authority. This is consistent with U.S. law on this issue.
Paragraph 5 makes it clear that the person released under
paragraph 4 may be taken into custody again and the extradition
proceedings may commence when the formal request is presented.
Article 14--Decision and Surrender
This article requires that the Requested State promptly
notify the Requesting State through diplomatic channels of its
decision on the extradition request. If extradition is denied
in whole or in part, the Requested State must provide an
explanation of the reasons for the denial. If extradition is
granted, the article requires that the two States agree on a
time and place for surrender of the person and, under paragraph
5, under certain circumstances, may seek to agree on a new date
for surrender. The Requesting State must remove the fugitive
within the time prescribed by the law of the Requested State,
or the person may be discharged from custody, and the Requested
State may subsequently refuse to extradite for the same
offense. United States law permits the person to apply for
release if he has not been surrendered within two calendar
months of having been found extraditable, 26 or of
the conclusion of any litigation challenging that finding,
27 whichever is later. The law in South Africa does
not contain any specific time period within which a person must
be removed after having been found extraditable.
---------------------------------------------------------------------------
\26\ Title 18, United States Code, Section 3188.
\27\ Jimenez v. United States District Court, 84 S. Ct. 14, 11
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See, also,
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th
Cir. 1978).
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Article 15--Concurrent Requests
This article reflects the practice of many recent United
States extradition treaties and lists some of the factors which
the executive authority of the Requested State must consider in
determining to which country a person should be surrendered
when reviewing requests from two or more States for the
extradition of the same person. For the United States, the
Secretary of State would make this decision. 28
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\28\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
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Article 16--Seizure and Surrender of Property
This article provides that to the extent permitted by its
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other
evidence--relating to the offense for which extradition is
requested.
The second paragraph of the article provides that these
objects may be surrendered to the Requesting State even if
extradition cannot be effected due to the death, disappearance,
or escape of the fugitive.
The third paragraph enables the Requested State to
temporarily surrender the property to the Requesting State with
assurances that the property will be returned within a fixed
period of time or as soon as practicable, where the property is
liable to seizure or confiscation in the Requested State. It
may also defer surrender if the property is needed in
connection with pending criminal proceedings in the Requested
State.
The final paragraph states that the obligation to surrender
property under this provision is subject to due respect for any
rights that the Requested State or any third parties may have
to such property.
Article 17--Rule of Speciality
This article covers the principle known as the rule of
speciality (or ``specialty''), which is a standard aspect of
United States and international extradition practice. Designed
to insure that a fugitive surrendered for one offense is not
tried for other crimes, the rule of specialty prevents a
request for extradition from being used as a subterfuge to
obtain custody of a person for trial or service of sentence on
different charges which may not be extraditable under the
treaty or properly documented at the time that the request is
granted.
Since a variety of exceptions to the rule have developed
over the years, paragraph 1 of this article codifies the
current formulation of the rule by providing that a person
extradited under the Treaty may only be detained, tried, or
punished in the Requesting State for (1) the offense for which
extradition was granted, or any other extraditable offense of
which the person could be convicted upon proof of the same
facts upon which the extradition was granted, or a lesser
included offense; and (2) for offenses committed after the
extradition; and (3) any other offenses for which the executive
authority of the Requested State consents. 29
Article 17(1)(b) permits the Requested State to require the
documents described in Article 9 when it is asked for its
consent to pursue additional charges.
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\29\ In the United States, the Secretary of State has the authority
to grant such consent. See, Berenguer v. Vance, 473 F. Supp. 1195
(D.D.C. 1979).
---------------------------------------------------------------------------
Paragraph 2 removes the restrictions imposed by paragraph 1
if (1) the person leaves and voluntarily returns to the
Requesting State, or (2) the person does not leave the
Requesting State within fifteen days of being free to do so.
Article 18--Surrender to a Third State or an International Tribunal
This article provides that a person extradited to either
State cannot be surrendered to a third state or an
international tribunal for a crime committed prior to surrender
under this Treaty unless (a) the Requested State consents to
that surrender or (b) the person has had an opportunity to
leave the territory of the Requesting State and has not done so
within fifteen days of final discharge in respect of the
offense for which extradited, or has returned to the territory
of the Requesting State after leaving it. The reference to
international tribunals in this article records the fact that,
consistent with the rule of specialty under international law,
the prior consent of the United States would be required if
South Africa were to seek to extradite to the International
Criminal Court agreed to in Rome on July 17, 1998, or to any
other international tribunal, a fugitive who had been
previously extradited from the United States to South Africa
under this Treaty.
Paragraph 2 provides that the Requested State may request
relevant information before acceding to a request for consent.
Article 19--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings to expedite their return
to the Requesting State. This article provides that when a
fugitive consents to return to the Requesting State the person
may be surrendered to the Requesting State without further
proceedings. The Parties anticipate that in such cases
therewould be no need for the formal documents described in
Article 9 or further judicial proceedings of any kind.
If the person sought returns to the Requesting State before
the Secretary of State signs a surrender warrant, the United
States would not view the waiver of proceedings under this
article as an ``extradition,'' and U.S. practice has long been
that the rule of specialty does not apply when a fugitive
waives extradition and voluntarily returns to the Requested
State.
Article 20--Transit
Paragraph 1 gives each State the discretion to authorize
transit through its territory of persons being surrendered to
the other State by third countries.
Paragraph 2 specifies that the transit request is to be
transmitted either through the diplomatic channel, or directly
between the Departments of Justice in the United States and
South Africa, or, in cases of urgency, via Interpol channels.
Paragraph 3 provides that requests for transit are to
contain a description of the person whose transit is proposed,
including information concerning nationality, and a brief
statement of the facts of the case with respect to which he is
being surrendered to the Requesting State. Paragraph 4 makes
clear that permission to effect transit shall include
permission for the person to be held in custody during the
transit, subject to the law of the Requested State. If
transportation is not continued in a reasonable time, the
executive authority of the transit State may order the person's
release.
Paragraph 5 states that no advance authorization is
required if the person in custody is being transported by air
by one State to a third country and no landing is scheduled in
the territory of the other State. Should an unscheduled landing
occur, a request for transit may be required at that time. The
Treaty provides that the person may be kept in custody for up
to 96 hours until a request for transit is received, and
thereafter until it is executed.
Article 21--Representation and Expenses
The first paragraph of this article provides that the
United States will make all necessary arrangements and meet the
cost of any proceedings, and will represent South Africa in
connection with a request from South Africa for extradition
before the courts in this country. South Africa undertakes the
same obligations including representation of the United States
in connection with United States extradition requests to South
Africa. In some cases, the Requested State may wish to retain
private counsel to assist in the presentation of the
extradition request. It is anticipated that in those cases the
fees of private counsel retained by the Requested State would
be paid by the Requested State.
Paragraph 2 provides that the Requested State will bear the
expenses of extradition incurred in its jurisdiction until the
fugitive is surrendered.
Paragraph 3 states that the costs of the translation of
documents and the costs of conveying the person from the
territory of the Requested State are to be paid by the
Requesting State.
Paragraph 4 provides that neither State shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, and surrender of the fugitive. This includes any
claim by or on behalf of the fugitive for damages,
reimbursement, or legal fees, or other expenses occasioned by
the execution of the extradition request.
Article 22--Consultation
Article 22 of the treaty provides that the Departments of
Justice in the United States and South Africa may consult with
one another with regard to an individual extradition case or on
extradition procedures in general. A similar provision is found
in other recent U.S. extradition treaties.
Article 23--Application
This Treaty, like most of the other United States
extradition treaties negotiated in the past two decades, is
expressly made retroactive, and covers offenses which occurred
before, on, or after the date upon which the Treaty entered
into force. The article specifies that nothing in this Treaty
shall be deemed to require or authorize any action by the
Requested State that is contrary to the constitution of that
State.
Article 24--Ratification, Entry Into Force, and Termination
This article contains standard treaty language providing
that it is subject to ratification and calling for the exchange
of instruments of ratification as soon as possible. The Treaty
is to enter into force immediately upon such exchange and may
be terminated with six months written notice by either State.
Upon entry into force, the 1947 Treaty will cease to have any
effect. Paragraph 3 provides, however, that the prior Treaty
shall apply to any extradition proceedings in which the
extradition documents have already been submitted to the
courts, except that waiver of extradition under Article 19
shall be available and Articles 17 and 18 concerning the rule
of specialty and surrender to a third State or international
tribunal shall also apply.
------
Technical Analysis of the Extradition Treaty Between the United States
of America and the Democratic Socialist Republic of Sri Lanka
On September 30, 1999, the United States signed an
Extradition Treaty Between the Government of the United States
of America and the Government of the Democratic Socialist
Republic of Sri Lanka (the ``Treaty''). In recent years, the
United States has signed similar treaties with many other
countries as part of an ongoing effort to modernize our law
enforcement relations. The Treaty is intended to replace the
current extradition treaty in force with respect to the two
countries. That treaty, the Treaty for the Mutual Extradition
of Criminals between the United States of America and Great
Britain, signed at London December 22, 1931 (``the 1931
Treaty'') became applicable to Sri Lanka by virtue of Article 6
of the External Affairs Agreement between the United Kingdom
and Ceylon, signed at Colombo on November 11, 1947.\1\
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\1\ Extradition Treaty between the United States and the United
Kingdom, signed at London December 22, 1931; entered into force June
24, 1935, 47 Stat. 2122, T.S. 849, 12 Bevans 482, 163 L.N.T.S. 59 (the
``1931 Treaty'')(applicable to Sri Lanka in accordance with Article 6
of the External Affairs Agreement between the United Kingdom and
Ceylon, signed at Colombo November 11, 1947, T.I.F. 9433).
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It is anticipated that the Treaty will be implemented in
the United States pursuant to the procedural framework provided
by Title 18, United States Code, Section 3184 et seq. No new
implementing legislation will be needed for the United States.
Sri Lanka has extradition legislation that will apply to U.S.
requests under the Treaty.\2\
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\2\ See, Extradition Law, No. 8 of1977 of The National State
Assembly, 1977 (hereinafter the ``Sri Lanka Extradition Act'').
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The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
history. The technical analysis includes a discussion of U.S.
law and relevant practice as of the date of its preparation,
which are, of course, subject to change. Foreign law
discussions reflect the current state of that law, to the best
of the drafters' knowledge.
Article 1--Obligation to Extradite
This article formally obligates both parties to the Treaty
to extradite to each other persons sought by the authorities in
the Requesting State for trial or punishment for an
extraditable offense. The phrase ``sought by the authorities .
. . for an extraditable offense'' is used rather than ``charged
with an extraditable offense'' to provide for the submission
and consideration of extradition requests for persons wanted
for prosecution but not yet formally charged. In Sri Lanka a
warrant is issued for an accused person, but formal judicial
charges are not filed until the defendant is in custody and
brought before a judge.\3\
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\3\ U.S. law allows extradition without judicial charges pending in
the foreign country. In Re Assarsson, 635 F. 2d 1237 (7th Cir. 1980).
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Article 1 refers to persons sought by authorities ``in''
the Requesting State rather than ``of'' the Requesting State,
thereby obligating Sri Lanka to extradite fugitives sought by
authorities of the United States or any political subdivision
thereof.
Article 2--Extraditable Offenses
Article 2 defines an extraditable offense. The article
permits extradition for any offense punishable under the laws
of both Contracting States by deprivation of liberty for a
period of more than one year or by a more severe penalty.
Termed ``dual criminality,'' this method of defining
extraditable offenses was used in lieu of listing each
extraditable offense as in the 1931 treaty. Dual criminality
eliminates the need to renegotiate or supplement the Treaty if
both Contracting States pass laws creating a new type of
criminal offense, or if the list inadvertently fails to include
a criminal activity punishable by both Contracting States. Sri
Lanka and the United States determine whether a crime is
punishable under the laws of both contracting states by
assessing the fugitive's underlying acts, not by comparing the
elements of crimes. During the negotiations, both sides
discussed certain crimes such as narcotics trafficking,
terrorism, degradation of the environment, money laundering,
racketeering, anti-trust, export control violations, tax
violations, child molestation, securities law violations, and
parental kidnapping and concluded that such crimes were
offenses in both countries.
Paragraph 2 of Article 2 provides that extradition shall
also be granted for an attempt or a conspiracy to commit,
aiding or abetting, counseling or procuring the commission of,
or being an accessory before or after the fact to, any
extraditable offense. This is significant because conspiracy
charges are frequently used in U.S. criminal prosecutions
involving complex transnational criminal activity. This creates
an exception to the dual criminality rule of paragraph 1 since
any offense included in Article 2 Paragraph 2 is extraditable,
even if found only within the laws of the Requesting State, so
long as the underlying offense satisfies the requirements of
paragraph 1.
Paragraph 3 reflects the intention of the Contracting
States to interpret the principles of this article broadly.
Similar provisions are contained in all recent U.S. extradition
treaties.
Paragraph 3(a) requires a Requested State to disregard
differences in the categorization of, or terminology used to
describe the offense when determining whether dual criminality
exists. In determining whether an offense is extraditable, the
focus is on the acts constituting the offense rather than a
comparison of the U.S. and Sri Lanka criminal code provisions
defining the offenses.
Paragraph 3(b) is included to make clear that elements such
as the use of the mails or interstate transportation are merely
jurisdictional and provide no basis for denying extradition.
Judges in foreign countries are often confused by the fact that
many United States federal statutes require proof of certain
elements (such as use of the mails or interstate
transportation) solely to establish jurisdiction in the United
States federal courts. Because these foreign judges know of no
similar requirement in their own criminal law, they
occasionally have denied the extradition of fugitives sought by
the United States on federal charges on this basis. This
paragraph requires that such elements be disregarded in
determining dual criminality. For example, Sri Lankan
authorities must treat United States federal mail fraud charges
(Title 18, United States Code, Section 1341) in the same manner
as fraud charges under state laws, and view the federal crime
of interstate transportation of stolen property (Title 18,
United States Code, Section 2314) in the same manner as
unlawful possession of stolen property.
Paragraph 4 recognizes that extraditable crimes can involve
acts committed wholly outside the territory of the Requesting
State. United States jurisprudence recognizes jurisdiction to
prosecute certain offenses committed outside of the United
States if the crime was intended to, or did, have effects in
this country, or if the legislative history of the statute
shows clear Congressional intent to assert such
jurisdiction.\4\ This paragraph reflects the fact that the
Requested State shall not inquire into the extraterritorial
jurisdictional basis of the Requesting State's prosecution. If
the dual criminality and other requirements of the Treaty are
satisfied, extradition shall be granted regardless of where the
act or acts constituting the offense occurred.
---------------------------------------------------------------------------
\4\ Restatement (Third) of the Foreign Relations Law of the United
States, Sec. 402 (1987); Blakesley, United States Jurisdiction over
Extraterritorial Crime, 73 Journal of Criminal Law and Criminology 1109
(1982). Some U.S. criminal laws specifically provide for jurisdiction
over crimes committed abroad.
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Paragraph 5 provides that if extradition for one offense
has been granted, extradition shall also be granted for any
other offense punishable by less than one year's deprivation of
liberty, so long as the lesser offenses meet all other
requirements for extradition. For example, if Sri Lanka agrees
to extradite to the United States a fugitive wanted for
prosecution of a felony, Sri Lanka must also grant extradition
for any misdemeanor offenses for which the fugitive is sought,
so long as those misdemeanors would also be recognized as
criminal offenses in Sri Lanka and are included in the request.
This practice is generally desirable to both the fugitive and
the prosecuting party as it permits all charges against the
fugitive to be adjudicated more quickly, thereby facilitating
trials while evidence is still fresh and permitting the
possibility of concurrent sentences. Similar provisions are
found in other recent extradition treaties.\5\
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\5\ See, e.g., U.S.-Barbados Extradition Treaty, signed at
Bridgetown, February 28, 1996, entered into force March 3, 2000, art.
2(5).
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Article 3--Nationality
Authorities in some countries, because of statutory or
constitutional prohibitions or as a matter of policy, do not
extradite nationals to another country. Neither the United
States \6\ nor Sri Lanka \7\ denies extradition on the basis of
the fugitive's nationality. Therefore, in Article 3 the
Contracting States agree not to refuse extradition because the
person sought is a national of the Requested State.
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\6\ See, generally Shearer, Extradition in International Law 110-14
(1970); 6 Whiteman, Digest of International Law 871-76 (1968). U.S.
policy of drawing no distinction between nationals of the United States
and those of other countries in extradition matters is underscored by
Title 18, United States Code, Section 3196, which authorizes the
Secretary of State to extradite U.S. citizens even pursuant to treaties
that permit (but do not require) surrender of citizens, if other
requirements of the Treaty have been met.
\7\ See, Sri Lanka Extradition Act Sec. I(7).
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Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in U.S.
extradition treaties and is incorporated in the Sri Lanka
Extradition Act.\8\
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\8\ See, Sri Lanka Extradition Act Sec. 7(a).
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Paragraph 2 designates specific offenses which, for the
purposes of the Treaty, shall not be considered political
offenses. Under subparagraph 2(a) murder or other violent crime
against the person of a Head of State or Government of a
Contracting State, or a member of the family of such Head of
State or Government is not to be considered a political
offense.
The next five subparagraphs exclude offenses from the
political offense exception that are the subject of
multilateral treaties, conventions, or international treaties
to which both Contracting States are parties and which obligate
them to extradite the person sought or submit the matter for
prosecution. Paragraphs 2(b) through 2(e) list specific
offenses in this category including: aircraft hijacking; \9\
aviation sabotage; \10\ any crime against an internationally
protected person; \11\ and violence at airports,\12\ and
paragraph 2(f) covers any other such offense.
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\9\ Convention on the Suppression of Unlawful Seizures of Aircraft,
Dec. 16, 1970 22 U.S.T 1641., T.I.A.S. 7192.
\10\ Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. 7570.
\11\ Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons Dec. 14, 1973, 28 U.S.T. 1975,
T.I.A.S. No. 8532, 1035 U.N.T.S. 167.
\12\ Protocol for the Suppression of Unlawful Acts of Violence at
Airports Serving International Civil Aviation, supplementary to the
Convention for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation, Dec. 17, 1979, T.I.A.S. No. 11081.
---------------------------------------------------------------------------
Finally, under 2(g), a conspiracy or attempt to commit any
of the foregoing offenses, or aiding or abetting a person who
commits or attempts to commit such offenses is not considered a
political offense.
Paragraph 3 of this article provides for denial of
extradition when the executive authority of the Requested State
determines that the request is politically motivated,
notwithstanding the exceptions in paragraph 2.\13\ In Sri
Lanka, a finding that a request was politically motivated may
come from either a minister in the executive branch or the
courts. Whether such a finding comes from the courts or the
executive, the executive authorities are responsible for the
implementation and administration of that decision. Due to this
responsibility, the Sri Lankan delegation assured us that a
decision of the courts would still be considered to be
``determined by the executive authority.'' Under longstanding
law and practice of the United States, the Secretary of State
alone has the discretion to determine whether an extradition
request is based on improper political motivation.\14\
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\13\ There are similar provisions in many U.S. extradition
treaties. See, e.g., U.S.-India Extradition Treaty, signed at
Washington June 25, 1997, entered into force July 21, 1999, art. 5(2).
\14\ See, Eain v. Wilkes, 641 F. 2d 504, 513 (7th Cir.), cert.
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 931 F. 2d 169, 174.
See, also, Title 18, United States Code, Section 3186.
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Paragraph 4 of this article permits refusal of an
extradition request for acts which constitute an offense under
military law, but not ordinary criminal law.\15\
---------------------------------------------------------------------------
\15\ An example of such an offense is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-03 (N.D. Cal. 1988).
---------------------------------------------------------------------------
Article 5--Prior Prosecution
Paragraph 1 prohibits extradition if the person sought has
been convicted or acquitted in the Requested State for the
offense for which extradition is requested.\16\ This provision
serves to prevent extradition only when the person sought has
been convicted or acquitted in the Requested State for the same
crime that is charged in the Requesting State. The term
``offense'' in this provision means the crime and does not mean
the act for which the extradition is requested. A single set of
facts may result in different offenses in different
jurisdictions, and a prosecution for one such offense should
not bar extradition for another. For instance, if an offender
is accused in one State of illegally smuggling narcotics into
the country, and is charged in the other State of unlawfully
exporting the same shipment of drugs out of that State, an
acquittal or conviction in either one of the States would not
insulate the person from extradition to the other, since
different crimes are involved. Further, this provision does not
permit a state to refuse extradition because the fugitive has
been convicted or acquitted in a third state.
---------------------------------------------------------------------------
\16\ Language used in this article is similar to that used in many
recent U.S. extradition Treaties. See, e.g., U.S.-India Extradition
Treaty, signed at Washington June 25, 1997, entered into force July 21,
1999, art. 6.
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Paragraph 2 makes it clear that neither Contracting State
can refuse to extradite on the grounds that the Requested
State's authorities declined to prosecute or pardoned the
offender, or instituted criminal proceedings against the
offender and thereafter elected to discontinue the proceedings.
For example the Requested State may have decided to forego
prosecution, or to dismiss charges, because of a failure to
obtain sufficient evidence for trial, whereas substantial
evidence may be available in the Requesting State.\17\ This
provision should enhance the ability of the Contracting States
to extradite to the jurisdiction with the better chance of a
successful prosecution.
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\17\ See, Sri Lanka Extradition Act Sec. 7(2).
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Article 6--Lapse of Time
Article 6 provides that the decision by the Requested State
whether to grant the request for extradition shall be made
without regard to statutes of limitations of either state.\18\
The 1931 Treaty contains a bar to extradition when prosecution
has become barred by lapse of time according to the law of
either State. However, the preferred modern approach is not to
bar extradition on this basis. The parties agreed to leave
resolution of such issues to the courts of the Requesting
State. This approach is contained in many modern U.S.
extradition treaties.\19\
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\18\ This is consistent with settled law in the United States,
which holds that lapse of time is not a defense to extradition unless
the treaty specifically provides to the contrary. Freedman v. United
States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v.
Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977).
\19\ See, e.g., U.S.-Barbados Extradition Treaty, signed at
Bridgetown February 28, 1996, entered into force March 3, 2000, art. 8.
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Article 7--Capital Punishment
Paragraph 1 permits the Requested State to refuse to
extradite a fugitive in cases in which the offense for which
extradition is sought is punishable by death in the Requesting
State, but is not punishable by death in the Requested State,
unless (a) the extraditable offense constitutes murder under
the laws of the Requested State; or (b) the Requesting State
provides assurances, which the Requested State considers
sufficient, that the death penalty will not be imposed or, if
imposed, will not be carried out.\20\
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\20\ Similar provisions are found in many recent U.S. extradition
treaties. See, e.g., U.S.-India Extradition Treaty, signed at
Washington June 25, 1997, entered into force July 21, 1999, art. 8.
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Paragraph 2 provides that when the Requesting State gives
acceptable assurances in accordance with Paragraph 1(b) of this
Article, those assurances shall be honored and the death
penalty, if imposed, shall not be carried out.
Article 8--Extradition Procedures and Required Documents
This article sets forth the procedural, documentary and
evidentiary requirements to support an extradition request.\21\
---------------------------------------------------------------------------
\21\ A similar article appears in most recent U.S. extradition
treaties.
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Paragraph 1 requires that each formal request for
extradition be submitted through the diplomatic channel. A
formal extradition request may be preceded by a request for
provisional arrest under Article 11, which, in exceptional
cases of unusual urgency, need not be initiated through
diplomatic channels.
Paragraph 2 details the information which must accompany a
request for extradition. Some requirements delineated in
Article 8(2) enable a Requested State to more easily ascertain
the proper identity and whereabouts of a fugitive. Other
requirements facilitate the assessment of whether extradition
is appropriate. For example, Article 8(2)(c) requires ``a
statement of the laws describing the essential elements of the
offense for which extradition is requested'' and 8(2)(d)
requires a statement of the provisions of the law prescribing
punishment for offense. Such information should enable the
Requested State to determine whether the dual criminality
requirement under Article 2 has been met.
Paragraph 3 describes the additional information needed
when the person is sought for prosecution. Such requests must
be supported by a copy of the warrant or arrest order and a
copy of the charging document, if those documents exist. In
addition, the Requesting State must provide sufficient
information to support ``a reasonable basis to believe that the
person to be extradited committed the offense for which
extradition is requested and is the person named in the warrant
of arrest.'' This evidentiary requirement is consistent with
fundamental U.S. extradition jurisprudence, which mandates
sufficient evidence to establish probable cause before finding
a fugitive extraditable.\22\ The delegations agreed that the
language ``a reasonable basis to believe. . .'' in Article
8(3)(c) should not be interpreted to require a higher burden of
proof for extradition than the probable cause standard. The
Requested State need not provide proof sufficient to convict
the offender, a much higher standard, in order to find him/her
extraditable.
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\22\ Courts applying Title 18, United States Code, Section 3184
have long required probable cause for international extradition.
Restatement (Third) of the Foreign Relations Law of the United States
Sec. 476, comment b (1987).
---------------------------------------------------------------------------
Paragraph 4 contains the requirements for documents and
information which must accompany a request to extradite a
person who has been found guilty of the offense for which
extradition is sought. This paragraph makes clear that once a
person has been found guilty, no showing of the relevant burden
of proof as described in paragraph 3 is required. In essence, a
finding of guilt speaks for itself, a position taken in U.S.
court decisions even absent a specific treaty provision.\23\
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\23\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2d Cir. 1991); United States v.
Clark, 470 F. Supp. 976 (D. Vt. 1979).
---------------------------------------------------------------------------
Subsection (d) of paragraph 4 states that if the person
sought was found guilty in absentia, the documentation and
information required under paragraph 3 must be submitted with
the extradition request. In other words, information sufficient
for a showing of probable cause must accompany a request for
extradition of a person found guilty in absentia.
Article 9--Admissibility of Documents
Article 9 sets forth the authentication conditions for
receiving and admitting extradition documents into evidence.
Subparagraph (a) states that evidence intended for use in
extradition proceedings in Sri Lanka shall be admissible if
they are signed or certified by a judge, magistrate, or an
official of the United States, and sealed with the official
seal of a competent authority of the United States. This
language was crafted to meet the requirements of Sri Lankan law
on the authentication of documents to be used as evidence in
extradition proceedings (Section 14 (2) of the Sri Lankan
Extradition Act). The standard Department of Justice
certification and sealing of extradition documents already
meets the requirements of the subparagraph in general, and
should ensure the admissibility of U.S. extradition documents
in Sri Lankan extradition proceedings. In addition, however,
Sri Lanka recommended that individual affidavits contained in
our extradition packages be sworn before a judge or magistrate
in the United States rather than a notary public.\24\
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\24\ See, Sri Lanka Extradition Act Sec. 14(2).
---------------------------------------------------------------------------
Subparagraph (b) states that evidence intended for use in
extradition proceedings in the United States shall be
admissible if certified by the principal diplomatic or consular
officer of the United States resident in Sri Lanka, consistent
with U.S. extradition law.\25\
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\25\ See, Title 18, United States Code, Section 3190.
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Subparagraph (c) provides an alternative method for
authenticating evidence in an extradition proceeding, by
permitting such evidence to be admitted if it is authenticated
in any manner acceptable by the law of the Requested State. For
example, there may be information in the Requested State itself
which is relevant and probative to extradition. The Requested
State would be free under subparagraph (c) to utilize that
information if it is admissible under the ordinary rules of
evidence in the Requested State. Moreover, subparagraph (c)
should insure that relevant evidence, which would normally
satisfy the evidentiary rules of the Requested State, is not
excluded at the extradition hearing because of an inadvertent
error or omission in the authentication process.
Article 10--Language
All documents submitted by the Requesting State in support
of an extradition request shall be in the English language.
While there are three recognized languages in Sri Lanka
(Singhalese, Tamil and English), the Sri Lankan delegation
agreed that it would submit only documents prepared or
translated into English to the United States and that
extradition documents submitted by the United States in English
would be acceptable, and if translation into one of the other
Sri Lankan languages is required, it would be done by Sri
Lankan authorities at their expense.
Article 11--Provisional Arrest
This article describes the process, known as provisional
arrest, by which a fugitive in one country may be arrested and
detained before the formal extradition request supported by the
full set of documents is completed and submitted by the
Requesting State.
Paragraph 1 provides that a request for provisional arrest
may be made through the diplomatic channel but that in
exceptional cases of unusual urgency requests may also be
transmitted directly between the U.S. Justice Department and
the Sri Lankan Ministry of Justice and that INTERPOL facilities
may also be used to transmit such requests. Provisional arrest
requests transmitted other than through the diplomatic channel
will normally be confirmed by a diplomatic note.
Paragraph 2 lists the information that the Requesting State
must provide in its request for provisional arrest. Supporting
documentation is not required.
Paragraph 3 states that the Requesting State must be
advised promptly of the outcome of its application and the
reason for any denial.
Paragraph 4 provides that the fugitive may be discharged
from custody if the executive authority of the Requested State
does not receive a fully documented extradition request within
sixty days of the provisional arrest. When the United States is
the Requested State, the ``executive authority'' for the
purposes of paragraph 4 would include the Secretary of State or
the U.S. Embassy in Sri Lanka.\26\
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\26\ See, United States v. Wiebe, 733 F.2d 549 (8th Cir. 1984);
United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979). The Sri Lankan
Extradition Act provides for holding persons in custody for a
``reasonable time.'' The Sri Lankan delegation informed the U.S.
delegation that, in the case of a challenge by a provisionally arrested
person, Sri Lankan authorities should have no difficulty convincing a
Sri Lankan court that a period of incarceration of 60 days prior to the
submission of the formal extradition request is a ``reasonable time.''
Moreover, the Sri Lankan delegation pointed out that Section 3 of the
Extradition Act permits modifications necessary to implement
extradition treaties so long as the treaties create no direct conflict
with the Act '' thus the 60 day period in the Treaty would constitute a
permissible modification of the ``reasonable time'' provision in the
Act.
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Although the person arrested according to this article may
be released from custody if a fully documented extradition
request is not received within sixty days, Paragraph 5
establishes that the fugitive may be rearrested and the
extradition proceedings continued when the formal, documented
request is presented at a later date.
Article 12--Decision and Surrender
This article requires the Requested State to promptly
notify the Requesting State through the diplomatic channel of
its decision regarding the extradition request. If extradition
is denied in whole or in part, the Requested State must provide
the reasons for the denial. The Requested State shall also
provide any pertinent judicial opinions if the Requesting State
so requests. If the extradition request is granted, the article
requires that the Contracting States agree on a time and place
for the surrender of the fugitive.
Pursuant to Paragraph 4, if the fugitive is not removed
from the territory of the Requested State within the time
prescribed by the law of the Requested State, the person may be
discharged from custody and the Requested State may
subsequently refuse to extradite for the same offense. U.S. law
provides the possibility of discharge from custody of persons
who are not surrendered within two calendar months of the
finding of extraditability,\27\ or of the conclusion of any
litigation challenging that finding,\28\ whichever is later.
The Sri Lanka Extradition Act provides that extradition shall
not occur ``until the expiration of a period of fifteen days
commencing on the day on which the court order for his
committal is made; and if an application for habeas corpus is
made to the Supreme Court, so long as proceedings on that
application are pending.'' \29\ In Sri Lanka, following a
finding of extraditability by the Court, the government may
issue a warrant ordering the fugitive to be extradited.\30\ In
addition, in Sri Lanka a person may apply to the Supreme Court
for his release upon the expiration of a two month period
commencing at the conclusion of the fifteen day waiting period
described above, or at the conclusion of a one month period
commencing on the day on which a warrant for extradition was
issued.\31\
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\27\ Title 18, United States Code, Section 3188 provides that,
after two calendar months, any U.S. court, upon application may
discharge from custody a person so committed, unless sufficient cause
is shown why such discharge should not take place.
\28\ Jimenez v. United States District Court, 84 S. Ct. 14, 11 L.Ed
2d 30 (1963) (decided by Goldberg, J., in chambers). See, also, Liberto
v. Emery, 724 F. 2d 23 (2d Cir. 1983); In Re United States, 713 F.2d
105 (5th Cir. 1983); see, also, Barrett v. United States, 590 F. 2d 624
(6th Cir. 1978).
\29\ See, Sri Lanka Extradition Act Sec. 11(2).
\30\ See, Sri Lanka Extradition Act Sec. 12 (1).
\31\ See, Sri Lanka Extradition Act Sec. 13(1).
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Article 13--Temporary and Deferred Surrender
A person sought for extradition may be already facing
prosecution or serving a sentence in the Requested State.
Article 13 provides under appropriate circumstances for the
temporary surrender of such persons. This article also provides
a means for the Requested State to defer extradition in such
circumstances until the conclusion of the proceedings against
the person and the full execution of any punishment
imposed.\32\
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\32\ This is a discretionary provision exercisable by the Requested
State only; it does not create any right which a fugitive may exercise.
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Paragraph 1 provides for the temporary surrender of a
person ``for the purpose of prosecution'' in the Requesting
State who is being prosecuted or is serving a sentence in the
Requested State. ``The purpose of prosecution'' could include
the temporary transfer of a person to stand trial or to enter a
plea of guilty, or receive a sentence. A person temporarily
transferred pursuant to the Treaty shall be kept in custody by
the Requesting State and returned to the Requested State at the
conclusion of the proceedings in the Requesting State. The
Contracting States shall determine the conditions of the
fugitive's return to the Requested State. Such temporary
surrender furthers the interests of justice by allowing a trial
of the person sought while evidence and witnesses are more
likely to be available, thereby increasing the likelihood of a
successful prosecution. Such a transfer may also be
advantageous to the person sought in that it: (1) facilitates
resolution of the charges; (2) permits the concurrent serving
of sentences in the Requesting and Requested States; (3) allows
for a defense while favorable evidence is fresh and more
readily available. Current Sri Lankan law does not permit
temporary surrenders. Consequently, the words, ``subject to its
laws'' are included in the paragraph to provide for such
surrender should Sri Lankan law be changed.
Paragraph 2 provides that the Requested State may also
postpone the extradition proceedings against a person who is
being prosecuted or serving a sentence in the Requested State
until the conclusion of the prosecution or the full execution
of the punishment which has been imposed.\33\
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\33\ Under United States law and practice, the Secretary of State
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass.
1990), aff'd, 931 F.2d 169 (1st Cir. 1991). The United States may elect
to extradite a fugitive prior to the completion of a sentence. U.S. v.
Buekes, 888 F. Supp. 465 (EDNY 1995).
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Article 14--Requests for Extradition Made by Several States
Article 14 addresses the situation when requests are made
by different countries for extradition of the same person. The
article grants the executive authority of the Requested State
the authority to determine which country will receive the
fugitive. For the United States, the Secretary of State makes
this decision.\34\ In Sri Lanka, such decisions are made by the
Minister of Justice.\35\
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\34\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990)
aff'd, 932 F.2d 977 (11th Cir. 1991).
\35\ See, Sri Lanka Extradition Act Sec. Sec. 8(1) & 12(5).
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Article 15--Seizure and Surrender of Property
This article permits the seizure by the Requested State,
and surrender to the Requesting State, of all property relating
to the offense for which extradition is requested, to the
extent permitted by the law of the Requested State.\36\
Examples of such property include, but are not limited to,
articles, instruments, objects of value, and documents. Article
15 also provides that these articles may be so surrendered even
if extradition cannot be effected due to the death,
disappearance, or escape of the fugitive.
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\36\ Similar provisions are found in all recent U.S. extradition
treaties.
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Paragraph 2 states that the Requested State may condition
its surrender of property upon satisfactory assurances that the
property will be returned as soon as practicable, or may defer
surrender if the property is needed as evidence in the
Requested State.
Pursuant to Paragraph 3, the rights of third parties in
surrendered property shall be duly respected.
Article 16--Rule of Speciality
Article 16 incorporates into the Treaty the principle known
as the rule of speciality (or ``specialty''), which is a
standard component of U.S. and international extradition
practice. Designed to insure that a fugitive surrendered for
one offense is not tried in the Requesting State for other
crimes, the rule of specialty prevents an extradition request
from being used as a subterfuge to obtain custody of a person
for trial or service of sentence on different charges that may
not be extraditable or properly documented at the time that the
request is granted.\37\
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\37\ See, Sri Lanka Extradition Act Sec. 17(2).
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As a variety of exceptions to the rule have developed over
time, this article codifies in the Treaty the internationally
accepted formulation of the rule. Paragraph 1 provides that a
person extradited under the Treaty may not be detained, tried
or punished in the Requesting State except for (a) the offense
for which extradition was granted, or a differently denominated
offense based on the same facts, provided the offense is
extraditable or is a lesser included offense; (b) an offense
committed after the extradition; or (c) an offense for which
the executive authority of the Requested State consents.\38\
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\38\ In the United States the Secretary of State has the authority
to consent to a waiver of the rule of specialty. See, Berenguer v.
Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979). In Sri Lanka the Minister
of Justice has the authority to consent to a waiver of the rule of
specialty. Sri Lanka Extradition Act Sec. 7(3)(c).
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Paragraph 1(c)(i) provides that before giving such consent,
the Requested State may require the Requesting State to
document its request as for a new extradition request under the
Treaty. Paragraph 1(c)(ii) permits the Requesting State to
detain the person for 90 days, or for a longer period
authorized by the Requested State, while the Requested State
makes its determination on the application.
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third State or an international
tribunal for a crime committed prior to his surrender without
the consent of the Requested State.\39\
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\39\ This language makes clear, for example, that, consistent with
the rule of specialty under international law, prior consent of the
United States would be required if Sri Lanka proposed to transfer a
person, extradited from the United States, to the International
Criminal Court agreed to in Rome on July 17, 1998.
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Paragraph 3 provides that the restrictions of paragraphs 1
and 2 shall not apply if the extradited person (1) leaves and
returns to the Requesting State, or (2) does not leave the
territory of the Requesting State within ten days of being free
to do so, if the Requesting State is the United States, or
within forty-five days of being free to do so, if the
Requesting State is Sri Lanka. The longer period provided for
departure from Sri Lanka prior to proceeding for additional
offenses is the result of the forty-five day period set out in
that country's domestic extradition law.\40\
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\40\ See, Sri Lanka Extradition Act Sec. Sec. 12(2) & 17(3).
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Article 17--Waiver of Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings to expedite their return
to the Requesting State. This article provides that when a
fugitive consents to return to the Requesting State, subject to
the laws of the Requested State,\41\ the person may be returned
without further proceedings. In such cases there would be no
need for any further formal documentation or judicial
proceedings.
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\41\ The Sri Lanka Extradition Act does not explicitly provide for
such waivers, however, the Sri Lankan delegation expressed confidence
that Sri Lankan law would permit fugitives wanted by U.S. authorities
to consent to surrender, and that Sri Lankan authorities could keep
such persons in custody and return them to the United States without
the documents or proceedings required for a formal extradition. For
fugitives in the United States who wish to waive extradition, the
practice is to submit the waiver to the presiding judge who determines
whether the fugitive is proceeding voluntarily.
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If the person sought for extradition returns to the
Requesting State before the signing of a surrender warrant or
completion of the extradition process, the United States would
not view the waiver of proceedings under this Article as an
``extradition.'' U.S. practice has long been that the rule of
specialty does not apply when a fugitive waives extradition and
voluntarily returns to the Requesting State. The Sri Lankan
delegation to the Treaty negotiation stated that the practice
would be the same in Sri Lanka--the rule of specialty would not
apply to fugitives who waive extradition and return voluntarily
to the Requesting State.
Article 18--Transit
Paragraph 1 gives each Contracting State the discretion to
authorize transit through its territory of persons being
surrendered to the other Contracting State by third States, and
to hold such persons in custody during the period of
transit.\42\ Requests for transit, which are to be made through
the diplomatic channel or directly between the U.S. Department
of Justice and the Sri Lankan Ministry of Justice, or may be
transmitted via INTERPOL, must contain a description of the
person whose transit is proposed and a brief statement of the
facts of the case which occasioned his surrender to the
Requesting State.
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\42\ A similar provision is found in all recent U.S. extradition
treaties.
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Under Paragraph 2 no authorization is needed if the person
in custody is being moved by air and no landing is scheduled in
the territory of the other Contracting State. Should an
unscheduled landing occur, a request for transit may be
required at that time. The Treaty ensures that the person will
be kept in custody until a request for transit is received and
the transit is effected, so long as the request is received
within 96 hours of the unscheduled landing.
Article 19--Representation and Expenses
Paragraph 1 provides that in extradition proceedings under
the Treaty, the Requested State shall advise, assist, appear in
court and represent the interests of the Requesting State.
Thus, Department of Justice attorneys will represent Sri Lanka
in connection with its requests for extradition before U.S.
courts, and the Attorney General of Sri Lanka will perform
reciprocal services on behalf of the United States before Sri
Lankan courts. Although under the Sri Lankan law their Attorney
General technically appears as amicus curiae rather than in a
formal representation role on behalf of the United States, the
Sri Lankan delegation assured us that the Attorney General will
provide full advocacy in support of our extradition requests at
every stage in the Sri Lankan extradition proceedings.
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and the translation of documents, which are paid by the
Requesting State.
Paragraph 3 provides that neither Contracting State shall
make a pecuniary claim against the other arising out of the
arrest, detention, examination, or surrender of any fugitive.
This includes any claim brought on behalf of the fugitive for
damages, reimbursement or legal fees, or other expenses
occasioned by the execution of the extradition request.
Article 20--Consultation
This article provides that the Department of Justice and
the Attorney General's Department of Sri Lanka may consult with
each other regarding an individual extradition case or
extradition procedures in general.
Article 21--Application
This article makes the Treaty retroactive. Consequently,
requests for extradition for offenses committed before entry
into force can be made under the Treaty.\43\
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\43\ This provision is standard in modern United States Extradition
Treaties. See, e.g., U.S.-Jordan Extradition Treaty, signed at
Washington March 28, 1995, entered into force July 29, 1995, art. 21.
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Article 22--Ratification and Entry into Force
Article 22 contains standard treaty language providing for
ratification and the exchange of instruments of ratification as
soon as possible. The Treaty shall enter into force immediately
upon this exchange.
Paragraph 3 provides that when the Treaty enters into
force, the 1931 Treaty will cease to have effect upon the
Contracting States. However, if extradition documents have
already been submitted to the courts of the Requested State at
the time the Treaty enters into force, the 1931 Treaty will
remain applicable to such proceedings, although Article 16 of
this Treaty (addressing the Rule of Specialty) will apply.
Article 23--Termination
This Article contains standard treaty language describing
the procedure for termination of the Treaty after its entry
into force. Either Contracting State may terminate the Treaty
at any time by giving written notice to the other Contracting
State. The termination shall become effective six months after
the date of the notice.
VIII. Text of the Resolutions of Ratification
Treaty with Belize:
Resolved (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Extradition Treaty between the Government
of the United States of America and the Government of Belize,
signed at Belize on March 30, 2000 (Treaty Doc. 106-38),
subject to the understanding of subsection (a), the declaration
of subsection (b) and the proviso of subsection (c).
(a) Understanding.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
Prohibition of Extradition to the International
Criminal Court.--The United States understands that the
protections contained in Article 14 concerning the Rule
of Specialty would preclude the resurrender of any
person extradited to Belize from the United States to
the International Criminal Court contemplated in the
Statute adopted in Rome, Italy, on July 17, 1998,
unless the United States consents to such resurrender;
and the United States shall not consent to the transfer
of any person extradited to Belize by the United States
to said International Criminal Court unless the Statute
establishing that Court has entered into force for the
United States by and with the advice and consent of the
Senate, as required by Article II, section 2 of the
United States Constitution.
(b) Declaration.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
Treaty Interpretation.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) Proviso.-- The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification:
Supremacy of the Constitution.--Nothing in this
Treaty requires or authorizes legislation or other
action by the United States of America that is
prohibited by the Constitution of the United States as
interpreted by the United States.
Treaty with Paraguay:
Resolved (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Extradition Treaty between the Government
of the United States of America and the Government of the
Republic of Paraguay, signed at Washington on November 9, 1998
(Treaty Doc. 106-4), subject to the understanding of subsection
(a), the declaration of subsection (b) and the proviso of
subsection (c).
(a) Understanding.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
Prohibition of Extradition to the International
Criminal Court.--The United States understands that the
protections contained in Article XV concerning the Rule
of Specialty would preclude the resurrender of any
person extradited to the Republic of Paraguay from the
United States to the International Criminal Court
contemplated in the Statute adopted in Rome, Italy, on
July 17, 1998, unless the United States consents to
such resurrender; and the United States shall not
consent to the transfer of any person extradited to the
Republic of Paraguay by the United States to said
International Criminal Court unless the Statute
establishing that Court has entered into force for the
United States by and with the advice and consent of the
Senate, as required by Article II, section 2 of the
United States Constitution.
(b) Declaration.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
Treaty Interpretation.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) Proviso.-- The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification:
Supremacy of the Constitution.--Nothing in this
Treaty requires or authorizes legislation or other
action by the United States of America that is
prohibited by the Constitution of the United States as
interpreted by the United States.
Treaty with South Africa:
Resolved (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Extradition Treaty between the Government
of the United States of America and the Government of the
Republic of South Africa, signed at Washington on September 16,
1999 (Treaty Doc. 106-24), subject to the understanding of
subsection (a), the declaration of subsection (b) and the
proviso of subsection (c).
(a) Understanding.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
Prohibition of Extradition to the International
Criminal Court.--The United States understands that the
protections contained in Article 18 concerning the
surrender to a third State of an International Tribunal
would preclude the resurrender of any person extradited
to the Republic of South Africa from the United States
to the International Criminal Court contemplated in the
Statute adopted in Rome, Italy, on July 17, 1998,
unless the United States consents to such resurrender;
and the United States shall not consent to the transfer
of any person extradited to the Republic of South
Africa by the United States to said International
Criminal Court unless the Statute establishing that
Court has entered into force for the United States by
and with the advice and consent of the Senate, as
required by Article II, section 2 of the United States
Constitution.
(b) Declaration.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
Treaty Interpretation.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) Proviso.-- The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification:
Supremacy of the Constitution.--Nothing in this
Treaty requires or authorizes legislation or other
action by the United States of America that is
prohibited by the Constitution of the United States as
interpreted by the United States.
Treaty with Sri Lanka:
Resolved (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of the Extradition Treaty between the Government
of the United States of America and the Government of the
Democratic Socialist Republic of Sri Lanka, signed at
Washington on September 30, 1999 (Treaty Doc. 106-34), subject
to the understanding of subsection (a), the declaration of
subsection (b) and the proviso of subsection (c).
(a) Understanding.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
Prohibition of Extradition to the International
Criminal Court.--The United States understands that the
protections contained in Article 16 concerning the Rule
of Specialty would preclude the resurrender of any
person extradited to the Democratic Socialist Republic
of Sri Lanka from the United States to the
International Criminal Court contemplated in the
Statute adopted in Rome, Italy, on July 17, 1998,
unless the United States consents to such resurrender;
and the United States shall not consent to the transfer
of any person extradited to the Democratic Socialist
Republic of Sri Lanka by the United States to said
International Criminal Court unless the Statute
establishing that Court has entered into force for the
United States by and with the advice and consent of the
Senate, as required by Article II, section 2 of the
United States Constitution.
(b) Declaration.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
Treaty Interpretation.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) Proviso.-- The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification:
Supremacy of the Constitution.--Nothing in this
Treaty requires or authorizes legislation or other
action by the United States of America that is
prohibited by the Constitution of the United States as
interpreted by the United States.