[Senate Treaty Document 105-14]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.

                               SENATE
 1st Session                                                     105-14
_______________________________________________________________________


 
                    EXTRADITION TREATY WITH POLAND

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

    EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE 
       REPUBLIC OF POLAND, SIGNED AT WASHINGTON ON JULY 10, 1996





 July 9, 1997.--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, July 9, 1997.
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 United States of America and the Republic of 
Poland, signed at Washington on July 10, 1997.
    In addition, I transmit, for the information of the Senate, 
the report of the Department of State with respect to the 
Treaty. As the report explains, the Treaty will not require 
implementing legislation.
    This Treaty will, upon entry into force, enhance 
cooperation between the law enforcement communities of both 
countries. It will thereby make a significant contribution to 
international law enforcement efforts.
    The provisions in this Treaty follow generally the form and 
content of extradition treaties recently concluded by the 
United States.
    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, June 13, 1997.
The President,
The White House.
    I have the honor to submit to you the Extradition Treaty 
between the United States of America and the Republic of Poland 
(``the Treaty''), signed in Washington on July 10, 1996. I 
recommend that the Treaty be transmitted to the Senate for its 
advice and consent to ratification.
    The Treaty follows closely the form and content of 
extradition treaties recently concluded by the United States in 
most respects. The Treaty represents part of a concerted effort 
by the Department of State and the Department of Justice to 
develop modern extradition relationships to enhance the United 
States ability to prosecute serious offenders including, 
especially, narcotics traffickers and terrorists.
    The Treaty marks a significant step in bilateral 
cooperation between the United States and Poland. Upon entry 
into force, it will replace the Extradition Treaty and 
Accompanying Protocol between the United States and Poland that 
was signed at Warsaw on November 22, 1927, and entered into 
force on July 6, 1929, and the Supplementary Extradition Treaty 
signed at Warsaw on April 5, 1935, and entered into force on 
June 5, 1936. Those treaties have become outmoded, and the new 
Treaty will provide significant improvements. The Treaty does 
not require implementing legislation.
    Article 1 obligates each Contracting State to extradite to 
the other, pursuant to the provisions of the Treaty, any person 
whom the Authorities in the Requesting State seek for 
prosecution or have found guilty of an extraditable offense.
    Article 2(1) defines an extraditable offense as one 
punishable under the laws in both Contracting States by 
deprivation of liberty for a maximum period of more than one 
year, or by a more severe penalty. Use of such a ``dual 
criminality'' clause rather than a list of offenses covered by 
the Treaty obviates the need to renegotiate or supplement the 
Treaty as additional offenses become punishable under the laws 
of both Contracting States.
    Article 2(2) specifies that an extraditable offense also 
includes an attempt to commit or participation in the 
commission of an offense, or a conspiracy to commit (under 
United States law) or any type of association to commit (under 
Polish law) an offense as described in Article 2(1). Additional 
flexibility is provided by Article 2(3), which provides that an 
offense shall be considered an extraditable offense: (1) 
whether or not the laws in the Contracting States place the 
offense within the same category of offenses or describe the 
offense by the same terminology; or (2) whether or not the 
offense is one for which United States federal law requires the 
showing of such matters as interstate transportation or use of 
the mails or of other facilities affecting interstate or 
foreign commerce, such matters being merely for the purpose of 
establishing jurisdiction in a United States federal court.
    With regard to offenses committed outside the territory of 
the Requesting State, Article 2(4) provides the executive 
authority of the Requested State with discretion to grant or 
deny extradition if the offense for which extradition is sought 
would not be punishable under the laws of the Requested State 
in similar circumstances. Many United States criminal statutes 
have extraterritorial application, and the United States 
frequently makes requests for fugitives whose criminal activity 
occurred in foreign countries with the intent, actual or 
implied, of affecting the United States. Poland did not 
indicate that it anticipated any difficulty with this 
provision.
    Article 2(5) provides that, if extradition has been granted 
for an extraditable offense, it shall also be granted for any 
other offense requested, provided that all other requirements 
for extradition are met, even if thelatter offense is 
punishable by deprivation of liberty for one year or less.
    Article 3 includes as extraditable offenses under the 
Treaty an offense in connection with taxes, duties, 
international transfers of funds, and importation, exportation, 
and transit of goods, even if the Requested State does not 
require the same type of fee or tax or if it does not regulate 
fees, taxes, duties, transit of goods, and currency 
transactions in the same manner as the Requesting State.
    Article 4(1) provides that neither Contracting State shall 
be required to extradite its nationals, but the Executive 
Authority of the Requested State shall have the discretionary 
power to do so.
    Article 4(2) requires the Requested State, if it refuses 
extradition solely on the basis of the nationality of the 
person sought, to submit the case to its competent authorities 
for a decision as to prosecution.
    As is customary in extradition treaties, Article 5 
incorporates a political and military offenses exception to the 
obligation to extradite. Article 5(1) states generally that 
extradition shall not be granted for an offense of a political 
character.
    Article 5(2) specifies several categories of offenses that 
shall not be considered to be offenses of a political 
character:
          (a) murder or other willful crime against the person 
        of a Head of State of one of the Contracting States, or 
        of a member of the Head of State's family;
          (b) an offense for which both Contracting States are 
        obliged pursuant to a multilateral international 
        agreement to extradite the person sought or to submit 
        the case to their competent authorities for a decision 
        as to prosecution;
          (c) murder, manslaughter, malicious wounding, or 
        inflicting grievous bodily harm or other grievous 
        injury to health;
          (d) an offense involving kidnapping, abduction, or 
        any form of unlawful detention, including the taking of 
        a hostage;
          (e) placing or using an explosive, incendiary or 
        destructive device capable of endangering life, of 
        causing substantial bodily harm, or of causing 
        substantial property damage; and
          (f) an attempt to commit, or participation in the 
        commission of, any of the foregoing offenses, as well 
        as an association to commit these offenses as provided 
        by the laws of Poland, or conspiracy to commit these 
        offenses as provided by the laws of the United States.
    The Treaty's political offense exception is substantially 
identical to that contained in several other modern extradition 
treaties including the treaty with Hungary, which entered into 
force on March 18, 1997. Offenses covered by Article 5(2)(b) 
include:
          Aircraft hijacking covered by 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 No. 7192); 
        and,
          Aircraft sabotage covered by 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).
    Article 5(3) provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request was politically motivated.
    Article 5(4) permits the Requested State to deny 
extradition for military offenses that are not offenses under 
ordinary criminal law (for example, desertion).
    Article 6(1) permits the Requested State to refuse 
extradition when an offense is punishable by death under the 
laws in the Requesting State but not under the laws of the 
Requested State, unless the Requesting State providesthe 
assurance that the death penalty will not be imposed or, if imposed, 
will not be carried out. Article 6(2) declares that the death penalty, 
if imposed by the courts of the Requesting State, shall not be carried 
out in cases where the Requesting State has provided an assurance in 
accordance with Article 6(1).
    Article 7 bars extradition when the person sought has been 
tried and convicted or acquitted with final and binding effect 
in the Requested State for the same offense.
    Article 7(2), however, declares that extradition is not 
barred if the competent authorities in the Requested State have 
declined to prosecute for the offenses for which extradition is 
requested or have decided to discontinue criminal proceedings 
against the person sought for those offenses.
    Article 8 provides that extradition shall not be granted 
when prosecution or execution of a sentence has become barred 
by the statute of limitations of the Requesting State.
    Article 9 establishes the procedures and describes the 
documents that are required to support an extradition request. 
Article 9(1) requires that all requests be submitted through 
the diplomatic channel. Article 9(3)(c) provides that a request 
for the extradition of a person sought for prosecution be 
supported by evidence justifying committal for trial if the 
offense had been committed in the Requested State.
    Article 10 establishes the procedures under which documents 
submitted pursuant to the provisions of this Treaty shall be 
received and admitted into evidence.
    Article 11 requires that all documents submitted by the 
Requesting State be translated into the language of the 
Requested State.
    Article 12 sets forth procedures for the provisional arrest 
and detention of a person sought pending presentation of the 
formal request for extradition. Article 12(4) provides that if 
the Requested State's executive authority has not received the 
request for extradition and supporting documentation within 
sixty days after the provisional arrest, the person must be 
discharged from custody. Article 12(5) provides explicitly that 
discharge from custody pursuant to Article 12(4) does not 
prejudice subsequent rearrest and extradition of that person 
upon later delivery of the extradition request and supporting 
documents.
    Article 13 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.
    Article 14 specifies the procedures governing surrender and 
return of persons sought. It requires the Requested State to 
provide prompt notice to the Requesting State regarding its 
decision on the request for extradition. If the request is 
denied in whole or in part, Article 14(2) requires the 
Requesting State to provide information regarding the reasons 
therefor. If extradition is granted, the person sought must be 
removed from the territory of the Requested State within the 
time prescribed by its law or, if the law does not provide a 
specific time for surrender, within 30 days from the date on 
which the Requesting State is notified.
    Article 15 permits refusal of an extradition request for a 
person convicted in absentia, if the executive authority of the 
Requested State determines that the proceedings did not ensure 
the minimum right to defense to which the person is entitled. 
Extradition may be granted, however, if the Requesting State 
supplies a guarantee deemed adequate by the Requested State 
that the case will be reopened with a guaranteed right of 
defense.
    Article 16 concerns temporary and deferred surrender. 
Article 16(1) states that, if the extradition request is 
granted for a person being prosecuted for an offense other than 
that for which extradition is sought or is serving a sentence 
in the territory of the Requested State, that State may 
temporarily surrender the person to the Requesting State solely 
for the purpose of prosecution. Alternatively, Article 16(2) 
provides that the Requested State may postpone the extradition 
proceedings until itsprosecution has been concluded and the 
sentence has been served.
    Article 17 sets forth a non-exclusive 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(1) provides for the seizure and surrender to the 
Requesting State of property connected with the offense for 
which extradition is granted, to the extent permitted under the 
law of the Requested State. Such property may be surrendered 
even when extradition cannot be effected due to the death, 
disappearance, or escape of the person sought. In accordance 
with Article 18(2), surrender of property may be deferred if it 
is needed as evidence in the Requested State and may be 
conditioned upon satisfactory assurances that it will be 
returned. Article 18(3) imposes an obligation to respect the 
rights of third parties in affected property.
    Article 19 sets forth the rule of speciality. Article 19(1) 
provides, subject to specific exceptions, that a person 
extradited under the Treaty may not be detained, tried, or 
punished for an offense committed prior to extradition 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. Similarly, under Article 19(2), the Requesting 
State may not extradite such person to a third State for an 
offense committed prior to the original surrender unless the 
Requested State consents. However, Article 19(3) makes clear 
that these restrictions do not apply if the extradited person 
leaves the Requesting State after extradition and voluntarily 
returns to it or fails to leave the Requesting State within 
thirty days of being free to do so.
    Article 20 permits surrender to the Requesting State 
without further proceedings if the person sought provides 
written consent thereto. The Rule of Specialty set out in 
Article 19 will not apply to a waiver.
    Article 21 governs the transit through the territory of one 
Contracting State of a person being surrendered to the other 
State by a third State.
    Article 22 contains provisions on representation and 
expenses that are similar to those found in other modern 
extradition treaties. Specifically, the Requested State is 
required to represent the interests of the Requesting State in 
any proceedings arising out of a request for extradition. The 
Requesting State is required to bear the expenses related to 
the translation of documents and the transportation of the 
person surrendered. Article 22(3) clarifies that neither State 
shall make any pecuniary claim against the other State arising 
out of extradition procedures under the Treaty.
    Article 23 states that the United States Department of 
Justice and the Ministry of Justice of Poland may consult with 
each other directly or through the facilitiesof INTERPOL in 
connection with the processing of individual cases and in furtherance 
of maintaining and improving Treaty implementation procedures. In 
addition, the Requesting State is required, when requested by the 
Requested State, to inform the Requested State of the status of 
criminal proceedings against persons who have been extradited.
    Article 24, like the parallel provision in almost all 
recent United States extradition treaties, states that the 
Treaty shall apply to offenses committed before as well as 
after the date the Treaty enters into force, with certain 
qualifications.
    Article 25 identifies the executive authorities for each 
Party, the Secretary of State for the United States and the 
Minister of Justice-Attorney General for Poland, or a person 
designated by the respective executive authorities.
    Ratification and entry into force are addressed in Article 
26. That Article provides that the Parties shall exchange 
instruments of ratification at Warsaw and that the treaty shall 
enter into force 30 days after the exchange of instruments of 
ratification. Upon entry into force of this Treaty, the 1927 
Extradition Treaty between the United States and Poland, as 
supplemented in 1935, shall cease to have effect between the 
United States and Poland, with certain noted exceptions.
    Under Article 27, either Contracting State may terminate 
the Treaty at any time upon written notice to the other 
Contracting State, with termination to become effective 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.
                                                Madeleine Albright.




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