[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.