[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.