[Senate Treaty Document 104-9]
[From the U.S. Government Publishing Office]
104th Congress 1st SENATE Treaty Doc.
Session
104-9
_______________________________________________________________________
EXTRADITION TREATY WITH SWITZERLAND
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
THE EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF
AMERICA AND THE GOVERNMENT OF THE SWISS CONFEDERATION, SIGNED AT
WASHINGTON ON NOVEMBER 14, 1990
June 12, 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, June 9, 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 Extradition
Treaty Between the Government of the United States of America
and the Government of the Swiss Confederation, signed at
Washington on November 14, 1990. Also transmitted for the
information of the Senate is the report of the Department of
State with respect to the Treaty.
The Treaty is designed to update and standardize the
conditions and procedures for extradition between the United
States and Switzerland. Most significantly, it substitutes a
dual-criminality clause for a current list of extraditable
offenses, so that the new Treaty will cover numerous offenses
not now covered by our extradition treaty with Switzerland,
including certain narcotics offenses, important forms of white
collar crime, and parental child abduction. 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
combating terrorism by excluding from the scope of the
political offense exception offenses typically committed by
terrorists for which both the United States and Switzerland
have an obligation under a multilateral international agreement
to extradite or submit to their authorities for the purpose of
prosecution. These offenses include aircraft hijacking,
aircraft sabotage, crimes against internationally protected
persons (including diplomats), and hostage-taking.
The provisions in this Treaty follow generally the form and
content of extradition treaties recently concluded by the
United States. Upon entry into force, it will supersede the
Extradition Treaty of May 14, 1900, and the Supplementary
Extradition Treaties of January 10, 1935, and January 31, 1940,
Between the United States of America and the Swiss
Confederation.
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, May 1, 1995.
The President,
The White House.
The President: I have the honor to submit to you the
Extradition Treaty between the Government of the United States
of America and the Government of the Swiss Confederation signed
at Washington on November 14, 1990. I recommend that this
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
Extradition Treaty between the United States of America and
Switzerland, signed at Washington on May 14, 1900, and the
Supplementary Extradition Treaties, signed at Washington on
January 10, 1935, and at Bern on January 31, 1940.
Article 1 obligates each State to extradite to the other,
in accordance with the provisions of the Treaty, any persons
who are charged with, or have been found guilty of, an
extraditable offense, or persons who are wanted for the
carrying out of a detention order. This obligation extends to
extraterritorial offenses so long as the law of the Requested
State would provide for extraterritorial jurisdiction under
similar circumstances, or either the fugitive or the victim is
a national of the Requesting State. Explicit reference to
jurisdiction based on the nationality of the victim is not
typically included in United States extradition treaties, but
has been determined to be acceptable in this case and will be
discussed in the technical analysis of the treaty submitted to
the Senate Foreign Relations Committee.
Article 2 provides that an offense is extraditable if it is
punishable by both parties by deprivation of liberty for more
than one year. Extradition shall be granted only if the
duration of the penalty or detention order, or their aggregate,
still to be served, amounts to at least six months. The Article
also provides that attempts and conspiracies to commit these
offenses, and participation in the commission of the offenses,
are also extraditable when the underlying criminal act is also
a violation of Swiss federal law. Inclusion of a dual-
criminality clause rather than 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. The Article further provides that in determining
whether an offense is covered under the Treaty, it 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.
Article 3 incorporates several exceptions to the obligation
to extradite. Article 3(1) states generally that extradition
shall not be granted for political offenses or if the request
appears to be politically motivated. Article 3(2) states that
an offense for which both Parties are obliged pursuant to a
multilateral international agreement either to extradite or
submit the case for prosecution shall not be considered a
political offense and shall be dealt with in accordance with
the terms of the relevant multilateral international agreement.
For the United States and Switzerland, the offenses currently
include 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; T.I.A.S. No. 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; T.I.A.S. 7570) and the Protocol for the
Suppression of Unlawful Acts of Violence at Airports Serving
International Civil Aviation, Supplementary to the Montreal
Convention, done at Montreal February 24, 1988, and entered
into force August 6, 1989, and for the United States November
18, 1994; 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;
T.I.A.S. No. 8532); and 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 (T.I.A.S.
No. 11081). This limitation will also extend to crimes
similarly defined in other multilateral treaties to which both
the United States and Switzerland become Parties in the future.
Article 3(3) provides that the executive authority of the
Requested State may refuse extradition for acts which (a)
violated provisions of law relating exclusively to currency
policy, trade policy or economic policy, (b) are intended
exclusively to reduce taxes or duties, or (c) constitute an
offense only under military law. The provisions in subsections
(a) and (b) were included in the Treaty because Swiss law for
the most part prohibits extradition for purely fiscal or tax
offenses. This provision would not be used to shield from
extradition underlying criminal conduct, such as fraud,
embezzlement, or falsification of public documents, if that
conduct is otherwise extraditable.
Article 4 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.
Extradition may be denied if the offense for which
extradition is sought is subject to the jurisdiction of the
Requested State and that State will prosecute the offense.
Article 5 mandates the denial of extradition if prosecution
is barred by the lapse of time under the law of the Requesting
State.
Under Article 6, when an offense for which extradition is
requested 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 such assurances as the
Requested State considers sufficient that the death penalty
will not be carried out.
Article 7 provides a discretionary basis for the Requested
State to deny extradition of a person who has been convicted in
absentia unless the Requesting State gives such assurances as
the Requested State considers sufficient to safeguard the
rights of defense of the person sought.
Article 8 provides that the Requested State shall not
decline to extradite its nationals unless it has jurisdiction
to prosecute them for the acts for which extradition is sought.
If extradition is refused because the fugitive is a national of
the Requested State, that State shall submit the case for
prosecution at the request of the Requesting State.
Articles 9-12 address the procedures by which extradition
is to be accomplished. Article 9 describes the documents that
are required to support a request for extradition. Article 10
provides for the submission of additional information whenever
the Requested State considers the information provided with the
request to be insufficient. Article 11 requires that all
requests to the United States be submitted in English and all
requests to Switzerland be submitted in an official language
specified by the Swiss authorities in each case. Article 12
establishes the procedures under which documents submitted
pursuant to Article 9 shall be received and admitted into
evidence in the Requested Party.
Article 13 provides for the provisional arrest and
detention of a fugitive for no more than forty days (extendable
to sixty days) pending receipt by the executive authority of
the Requested State of a fully documented extradition request
in conformity with Article 9. The discharge of a fugitive 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 14 specifies the procedures to govern the surrender
and return of persons sought. The Requested State is required
promptly to notify the Requesting State of its decision on
extradition and, if denied in whole or in part, to provide an
explanation. If granted, the fugitive must be removed from the
territory of the Requested State within the time prescribed by
the law of the Requested State.
Article 15 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 or the punishment fully executed, or
(b) temporarily surrender the person to the Requesting State
solely for the purpose of prosecution.
Article 16 is the rule of speciality 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
authorities of the Requested State or unless the person
extradited fails to leave the Requesting State within 45 days
of being free to do so or, having left the Requesting State,
returns to it. Provision is made for preventing any lapse of
time resulting from the application of the rule of specialty,
for modifying charges that were the basis for extradition, and
for obtaining consent to prosecution by the individual
concerned.
Article 17 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 18 permits extradition without further proceedings
if the fugitive gives his consent. It further provides that
extradition from Switzerland pursuant to this Article shall be
subject to the rule of speciality.
Article 19 provides for the surrender to the Requesting
State of property related to the offense for which extradition
is requested, even if the person sought cannot be extradited.
The Requested State may, however, require the return of the
property as soon as practicable.
Article 20 governs the transit through the territory of one
of the Contracting States of a person being surrendered to the
other Contracting State by a third State.
Article 21 provides that the Requested State shall
represent the Requesting State in any proceedings in the
Requested State arising from a request for extradition and bear
all costs other than those arising from the translation of
documents and transportation of the person sought.
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 provides that this Treaty's procedures
should be used if they would facilitate the extradition
provided for under any other convention or under the law of the
Requested State. It also provides that this Treaty does not
impede extradition available under other international
agreement or arrangement between the Parties.
Article 24 requires consultation between the Parties to
facilitate implementation generally or with respect to a
specific case.
Article 25 provides that the Treaty will enter into force
180 days after the exchange of instruments of ratification.
Upon entry into force, this Treaty will supersede the
Extradition Treaty signed on May 14, 1900, and the
supplementary extradition treaties signed on January 10, 1935,
and January 31, 1940, between the United States of America and
the Swiss Confederation. The article also provides for
denunciation of the Treaty by either Party any time after five
years from the date of its entry into force and upon six months
written notice to the other Party.
A Technical Analysis explaining in detail the provisions of
the Treaty has been prepared by representatives from the
Departments of Justice and State, 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,
Warren Christopher.