[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.