[Senate Treaty Document 104-5]
[From the U.S. Government Publishing Office]



   104th Congress 1st            SENATE              Treaty Doc.
         Session
                                                        104-5
_______________________________________________________________________



                                     




 
                    EXTRADITION TREATY WITH HUNGARY

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

 THE TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND 
  THE GOVERNMENT OF THE REPUBLIC OF HUNGARY ON EXTRADITION, SIGNED AT 
                      BUDAPEST ON DECEMBER 1, 1994




  May 8, 1995.--Treaty was read the first time and, together with the 
accompanying papers, referred to the Committee on Foreign Relations and 
            ordered to be printed for the use of the Senate
  
                         LETTER OF TRANSMITTAL

                              ----------                              

                                      The White House, May 8, 1995.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification, I transmit herewith the Treaty Between 
the Government of the United States of America and the 
Government of the Republic of Hungary on Extradition, signed at 
Budapest on December 1, 1994. Also transmitted for the 
information of the Senate is the report of the Department of 
State with respect to this Treaty.
    The Treaty is designed to update and standardize the 
conditions and procedures for extradition between the United 
States and Hungary. Most significantly, it substitutes a dual-
criminality clause for the current list of extraditable 
offenses, thereby expanding the number of crimes for which 
extradition can be granted. The Treaty also provides a legal 
basis for temporarily surrendering prisoners to stand trial for 
crimes against the laws of the Requesting State.
    The Treaty further represents an important step in 
combatting terrorism by excluding from the scope of the 
political offense exception serious offenses typically 
committed by terrorists, e.g., crimes against a Head of State 
or first family member of either Party, aircraft hijacking, 
aircraft sabotage, crimes against internationally protected 
persons, including diplomats, hostage-taking, narcotics-
trafficking, and other offenses for which the United States and 
Hungary have an obligation to extradite or submit to 
prosecution by reason of a multilateral treaty, convention, or 
other international agreement. The United States and Hungary 
also agree to exclude from the political offense exception 
major common crimes, such as murder, kidnapping, and placing or 
using explosive devices.
    The provisions in this Treaty follow generally the form and 
content or extradition treaties recently concluded by the 
United States. Upon entry into force, it will supersede the 
Convention for the Mutual Delivery of Criminals, Fugitives from 
Justice, in Certain Cases Between the Government of the United 
States of America and the Austro-Hungarian Empire, signed at 
Washington, July 3, 1856, with certain exceptions.
    This Treaty will make a significant contribution to 
international cooperation in law enforcement. I recommend that 
the Senate give early and favorable consideration to the Treaty 
and give its advice and consent to ratification.

                                                William J. Clinton.
  
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                        Washington, April 14, 1995.
The President,
The White House.
    The President: I have the honor to submit to you the Treaty 
between the Government of the United States of America and the 
Government of the Republic of Hungary on Extradition (the 
``Treaty''), signed at Budapest on December 1, 1994. I 
recommend that the Treaty be transmitted to the Senate for its 
advice and consent to ratification.
    The Treaty follows generally the form and content of 
extradition treaties recently concluded by the United States. 
It represents a concerted effort by the Department of State and 
the Department of Justice to modernize the legal tools 
available for the extradition of serious offenders such as 
narcotics traffickers and terrorists.
    Upon entry into force, this Treaty will supersede the 
Convention for the Mutual Delivery of Criminals, Fugitives from 
Justice, in Certain Cases, between the Government of the United 
States of America and the Austro-Hungarian Empire, signed at 
Washington, July 3, 1856.
    Article 1 obligates each Party to extradite to the other, 
pursuant to the provisions of the Treaty, any person wanted for 
prosecution or for the imposition or enforcement of a sentence 
in respect of an offense described in Article 2.
    In Article 2, the Parties agree that an offense punishable 
by both parties by imprisonment or other form of detention for 
more than one year, or by a more severe penalty shall be 
extraditable. The Article also provides that attempts and 
conspiracies to commit these offenses, and participation in the 
commission of the offenses, are extraditable. Inclusion of a 
dual-criminality clause without a list of offenses covered by 
the Treaty obviates the need to renegotiate or supplement the 
Treaty as offenses become punishable under the laws of both 
parties. Among other things, the Article further provides that 
in determining whether an offense is covered under the Treaty, 
the offense shall be considered an extraditable offense whether 
or not the laws in the Contracting Parties place the offenses 
within the same category of offenses or describe the offense by 
the same terminology. With regard to offenses committed outside 
the territory of the Requesting State, the Requested State has 
discretionary authority under Article 2(4) to refuse 
extradition if the laws of the Requested State would not 
provide for jurisdiction in a similar situation.
    Article 3 provides that surrender may be refused on the 
grounds that the person sought is a national of the requested 
State, but that each party's Executive Authority--in the case 
of the United States, the Secretary of State--shall have the 
power to extradite its nationals, unless prohibited by its 
domestic legislation, if, in its discretion, it deems it 
appropriate to do so. Article 3(2) provides that in cases in 
which extradition is so refused, the Requesting State may 
request that the case be submitted to the competent authorities 
of the Requested State for prosecution.
    Article 4 incorporates a political offense exception to the 
obligation to extradite. Article 4(1) states generally that 
extradition shall not be granted for political offenses. 
Article 4(2) expressly excludes from the reach of the political 
offense exception several categories of offenses:
          (i) a murder or other willful crime against the 
        person of a Head of State of one of the Contracting 
        Parties, or of a member of the Head of State's family;
          (ii) an offense for which both Parties are obliged 
        pursuant to a multilateral international agreement to 
        extradite the person sought or submit the case for 
        prosecution; (e.g., aircraft hijacking pursuant to The 
        Hague Convention for the Suppression of Unlawful 
        Seizure of Aircraft, done at The Hague December 16, 
        1970, and entered into force October 14, 1971 (22 
        U.S.T. 1641; TIAS 7192); aircraft sabotage pursuant to 
        the Montreal Convention for the Suppression of Unlawful 
        Acts Against the Safety of Civil Aviation, done at 
        Montreal September 23, 1971, and entered into force 
        January 26, 1973, (24 U.S.T. 564; TIAS No. 7570) and 
        the Protocol for the Suppression of Unlawful Acts of 
        Violence at Airports serving International Civil 
        Aviation done at Montreal on February 24, 1988; crimes 
        against internationally protected persons, including 
        diplomats, under the Convention on the Prevention and 
        Punishment of Crimes Against Internationally Protected 
        Persons, including Diplomatic Agents, done at New York 
        December 14, 1973, and entered into force February 20, 
        1977 (28 U.S.T. 1975; TIAS No. 8532); hostage-taking, 
        pursuant to the International Convention against the 
        Taking of Hostages, done at New York on December 17, 
        1979, and entered into force June 3, 1983, and for the 
        United States January 6, 1985 (TIAS No. 11081); and 
        narcotics trafficking under the United Nations 
        Convention against Illicit Traffic in Narcotics Drugs 
        and Psychotropic Substances, done at Vienna December 
        20, 1988, which entered into force November 11, 1990;
          (iii) specified crimes, including murder, 
        manslaughter, other offenses involving substantial 
        bodily harm, kidnapping, and placing of certain 
        explosive, incendiary or destructive devices;
          (iv) a conspiracy or attempt to commit the offenses 
        described above, or participation in the commission of 
        those offenses.
    Article 4(3) provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request was politically motivated. Article 4(4) 
provides that the executive authority of the Requested State 
can refuse extradition for an offense under military law which 
is not an offense under ordinary criminal law.
    Article 5 bars extradition when the person sought has been 
convicted or acquitted in the Requested State for the same 
offense, but does not bar extradition if the competent 
authorities in the Requested State have declined to prosecute 
or have decided to discontinue criminal proceedings.
    Article 6 provides that extradition shall not be granted if 
at the time the Requested State receives the extradition 
request the prosecution or the enforcement of the penalty or 
the detention order has become barred by lapse of time under 
the law of the Requesting State.
    Under Article 7, when an offense for which surrender is 
sought is punishable by death under the laws of the Requesting 
State and is not so punishable under the laws of the Requested 
State, the Requested State may refuse extradition unless the 
Requesting State provides assurances that the death penalty 
will not be imposed or, if imposed, will not be carried out.
    Articles 8-10 address the procedures by which extradition 
is to be accomplished. Article 8 describes the documents that 
are required to support a request for extradition. Article 9 
establishes the procedures under which documents submitted 
pursuant to Article 8 shall be received and admitted into 
evidence in the Requested State. Article 10 provides that all 
documents submitted by the Requesting State shall be translated 
into the language of the Requested State.
    Article 11 provides for the provisional arrest and 
detention of the person sought for no more than sixty days 
pending receipt by the executive authority of the Requested 
State of a fully documented extradition request in conformity 
with Article 8. The discharge of the person sought from custody 
pursuant to this Article explicitly does not prejudice 
subsequent rearrest and extradition upon later delivery of the 
extradition request and supporting documents.
    Article 12 provides that the Requested State may request 
that a Requesting State supplement a request for extradition if 
the Requested State considers that the information furnished in 
support of a request for extradition is not sufficient to 
fulfill the Treaty requirements, and states that a person 
sought may be released by the Requested State if the evidence 
sought is not adequate or is not received within the time 
specified in the request for additional information. Such 
release shall not preclude the Requesting State from making 
another request for the same or a different offense.
    Article 13 specifies the procedures to govern the surrender 
and return of fugitives. The Requested State is required to 
promptly notify the Requesting State of its decision on 
extradition and, if the request is denied in whole or in part, 
to provide an explanation. If the request is granted, the 
person sought must be removed from the territory of the 
Requested State within the time prescribed by the law of the 
Requested State or, since Hungary has no such law, within the 
time set by the decision granting extradition.
    Article 14 provides that if a person is being prosecuted or 
is serving a sentence in the Requested State for a different 
offense, that State may (a) defer surrender until the 
proceedings are concluded and the sentence served, or (b) 
temporarily surrender the person to the Requesting State solely 
for the purpose of prosecution.
    Article 15 sets forth a non-exhaustive list of factors to 
be considered by the Requested State in determining to which 
State to surrender a person sought by more than one State.
    Article 16 provides, to the extent permitted under the law 
of the Requested State, for that State to seize and surrender 
to the Requesting State property related to the offense for 
which extradition is requested. This obligation, however, is 
subject to an obligation to duly respect the rights of third 
parties.
    Article 17 sets forth the rule of specialty for this 
treaty. It provides, subject to specific exceptions, that a 
person extradited under the Treaty may not be detained, tried, 
or punished for an offense other than that for which 
extradition has been granted, unless a waiver of the rule is 
granted by the executive authority of the Requested State or 
unless the person extradited fails to leave the Requesting 
State within ten days of being free to do so or, having left 
the Requesting State, voluntarily returns to it. Similarly the 
Requesting State may not surrender or transfer such person 
beyond its jurisdiction for the offense for which his surrender 
was granted or for an offense committed prior to the original 
surrender unless the Requested State consents or unless the 
individual remains after ten days or leaves and voluntarily 
returns.
    Article 18 permits surrender without further proceedings if 
the person sought gives his consent. It further provides that 
the rule of specialty in Article 17 shall not apply to such 
transfers.
    Article 19 governs the transit through the territory of one 
party of a person being surrendered to the other State by a 
third State.
    Article 20 contains provisions on representation and 
expenses that are similar to those found in other modern 
extradition treaties. Specifically, the Requested State bears 
the expenses for the legal representation of the Requesting 
State in any proceedings arising out of a request for 
extradition. The Requesting State shall bear the expenses 
related to the translation of documents and the transportation 
of the person surrendered. Article 20(3) clarifies that neither 
State shall make any pecuniary claim against the other State 
arising out of the arrest, detention, examination, or surrender 
of persons sought under the Treaty.
    Article 21 states that the U.S. Department of Justice and 
the Hungarian Ministry of Justice may consult with each other 
directly or through the facilities of the International 
Criminal Police Organization (INTERPOL) in connection with the 
processing of individual cases and in furtherance of 
maintaining and improving the procedures for the implementation 
of the Treaty. Other ministries, agencies, or government 
departments competent in extradition matters may be included in 
the consultations, as appropriate.
    Article 22, like the parallel provision in almost all 
recent United States extradition treaties, states that the 
Treaty is retroactive, in that it shall apply to offenses 
committed before as well as after the date the Treaty enters 
into force.
    Article 23 contains final clauses dealing with the Treaty's 
entry into force and termination. Paragraph 1 states that the 
Treaty shall be subject to ratification, and the instruments of 
ratification shall be exchanged as soon as possible. Paragraph 
2 states that the Treaty shall enter into force immediately 
upon the exchange of instruments of ratification. Pursuant to 
paragraph 3, upon entry into force of this Treaty, the 
Convention between the United States and the Austro-Hungarian 
Empire for the Mutual Delivery of Criminals, Fugitives from 
Justice, in Certain Cases, signed at Washington July 3, 1856 
shall cease to have any effect; nevertheless, the 1856 
Convention shall apply to any extradition proceeding in which 
extradition documents have already been submitted to the courts 
of the Requested State at the time this Treaty enters into 
force, except Article 18 of this Treaty (Simplified 
Extradition) shall be applicable to such proceedings. It 
further states that Article 17 (Rule of Specialty) shall apply 
to persons found extraditable under the prior treaty. Under 
paragraph 4, either party may terminate the Treaty at any time 
upon written notice to the other Party, and the Treaty would 
terminate six months after the date of receipt of such notice.
    A Technical Analysis explaining in detail the provisions of 
the Treaty is being prepared by the United States negotiating 
delegation and will be submitted separately to the Senate 
Committee on Foreign Relations.
    The Department of Justice joins the Department of State in 
favoring approval of this Treaty by the Senate at an early 
date.
    Respectfully submitted.
                                                     Strobe Talbot.