[Senate Treaty Document 105-50]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                SENATE

 2d Session                                                      105-50
_______________________________________________________________________


 
                    EXTRADITION TREATY WITH AUSTRIA

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

   EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF 
   AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA, SIGNED AT 
                     WASHINGTON ON JANUARY 8, 1998





 June 11, 1998.--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 11, 1998.
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 Republic of Austria, signed at 
Washington on January 8, 1998.
    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. This Treaty will 
supersede and significantly improve upon the Treaty between the 
Government of the United States and the Government of Austria 
for the extradition of fugitives from justice, signed at Vienna 
on January 31, 1930, and the Supplementary Extradition 
Convention signed at Vienna on May 19, 1934.
    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, May 11, 1998.
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 Republic of Austria (``the 
Treaty''), signed in Washington on January 8, 1998. 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 Austria. Upon entry 
into force, it will replace the Treaty between the Government 
of the United States and the Government of Austria for the 
extradition of fugitives from justice, signed at Vienna on 
January 31, 1930, and the Supplementary Extradition Convention 
signed at Vienna on May 19, 1934. Those treaties have become 
outmoded, and the new Treaty will provide significant 
improvements. The Treaty does not require implementing 
legislation.
    Article 1 obligates each Party to extradite to the other, 
pursuant to the provisions of the Treaty, any person whom the 
Authorities in the Requesting State have charged with or found 
guilty of an extraditable offense.
    Article 2(1) defines an extraditable offense as one 
punishable under the laws in both Parties 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 Parties.
    Article 2(2) provides that if extradition is sought for the 
enforcement of a prison sentence or a preventive measure 
restricting liberty ordered by a criminal court for an 
extraditable offense, it shall be granted only if at least 
three months of the sentence or preventive measure remain to be 
served.
    Article 2(3) provides that, if extradition has been granted 
pursuant to paragraph 1 or 2, it shall also be granted for any 
other offense requested, provided that all other requirements 
for extradition are met.
    Article 2(4) provides flexibility to enable extradition in 
three specific situations. An offense is to be considered an 
extraditable offense: (A) whether or not the laws in the 
Parties place the offense within the same category of offenses 
or describe the offense by the same terminology; (B) in 
criminal cases relating to taxes, customs duties, currency 
control, and import and export of commodities, whether or not 
the laws of the Parties provide for the same kinds of taxes or 
customs duties, or controls on currency or on the import or 
export of the same kinds of commodities; or (C) 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.
    Article 2(5) specifies that an extraditable offense also 
includes an attempt to commit or a conspiracy to commit, or 
participation in the commission of, an offense.
    With regard to offenses committed outside the territory of 
the Requesting State, Article 2(6) provides that extradition 
may be granted for an extraditable offense regardless of where 
it was committed. 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. Austrian criminal law also has 
broad jurisdictional scope, containing provisions to enable 
prosecution of Austrian nationals for offenses committed in 
other countries under certain circumstances.
    Article 3(1) provides that neither Party is required to 
extradite its nationals, but the Executive Authority of the 
Requested State has the discretionary power to do so, so long 
as the law of the Requested State does not preclude such 
extradition. Under Article 3(2), if extradition is refused 
solely on the basis of the nationality of the person sought, 
the Requested State must, at the request of the Requesting 
State, submit the case for domestic prosecution.
    As is customary in extradition treaties, Article 4 
incorporates a political and military offenses exception to the 
obligation to extradite. Article 4(1) states generally that 
extradition shall not be granted for a political offense. 
Article 4(2) specifies several categories of offenses that 
shall not be considered to be political offenses:
    (A) murder;
    (B) any other willful crime against the person of a Head of 
State of one of the Parties, or of a member of the Head of 
State's family; and
    (C) an offense for which both Parties 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.
    Article 4(3) provides that extradition shall not be granted 
if the executive authority of the RequestedState determines 
that the request was politically motivated.
    Article 4(4) permits the Requested State to deny 
extradition for military offenses that are not offenses under 
ordinary criminal law (for example, desertion).
    Article 5 provides that extradition may be refused if the 
person sought is proceeded against in the Requested State for 
the same offense. Article 5(2), however, declares that 
extradition may be granted 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 acts.
    Article 6(1) precludes extradition of a person who has been 
convicted or discharged with final and binding effect by the 
competent authorities in the Requested State for the offense 
for which extradition is requested. Article 6(2) clarifies that 
an acquittal or a discharge for lack of jurisdiction is not an 
obstacle to extradition, however.
    Article 7 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 8(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 provides the 
assurance that the death penalty will not be imposed or, if 
imposed, will not be carried out. Article 8(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 
8(1).
    Article 9 states that extradition may be refused for a 
person who has been found guilty in absentia, unless the 
Requesting State supplies assurances that the person has had or 
will be given an adequate opportunity to present a defense, or 
that there are adequate remedies or additional proceedings 
available to the person after surrender.
    Article 10 establishes the procedures and describes the 
documents that are required to support an extradition request. 
Article 10(1) requires that all requests be submitted through 
the diplomatic channel. Article 10(3)(c) provides that a 
request for the extradition of a person sought for prosecution 
be supported by evidence providing a reasonable basis to 
believe that the person committed the offense for which 
extradition is requested and is the person named in the arrest.
    Article 11 enables a Requested State to seek from the 
Requesting State supplementary information necessary to meet 
the requirements for extradition and to permit courts to grant 
a reasonable continuance in order to allow the request to be 
fulfilled.
    Article 12 requires that, unless otherwise agreed, all 
documents submitted by the Requesting State be translated into 
the language of the Requested State.
    Article 13 sets forth procedures for the provisional arrest 
of a person sought pending presentation of the formal request 
for extradition. Article 13(4) provides that if the Requested 
State's executive authority has not received the request for 
extradition and required supporting documentation within sixty 
(60) days after the provisional arrest, the person may be 
discharged from custody. Article 13(5) provides explicitly that 
discharge from custody pursuant to Article 13(4) does not 
prejudice subsequent rearrest and extradition of that person 
upon later delivery of the extradition request and supporting 
documents.
    Article 14 specifies the procedures governing surrender and 
return of persons sought. Article 14(1) requires the Requested 
State to provide prompt notice to the Requesting State 
regarding its decision on the request for extradition, and, if 
the request is denied in whole or in part, to provide an 
explanation of the reasons. If extradition is granted, the 
authorities of the Contracting Parties shall decide on the time 
and place for the surrender of the person sought. Article 14(3) 
provides that 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, as is the case in Austria, within a reasonable 
period of time to be determined by the Requested State. In such 
cases the Requested State may subsequently refuse extradition 
for the same offense. Article 14(4) provides an additional 
safeguard by allowing a Contracting Party to postpone surrender 
if compelled by circumstances beyond its control.
    Article 15 concerns postponed and deferred surrender. 
Article 15(1) provides that the Requested State may postpone 
the surrender of a person whose extradition has been granted if 
the person is being proceeded against or is serving a sentence 
in the Requested State. Alternatively, subparagraph (2) enables 
the Requested State temporarily to surrender such a person to 
the Requesting State solely for the purpose of prosecution, 
subject to return to the Requested State thereafter, in 
accordance with conditions determined by the Contracting 
Parties.
    Article 16 complements Article 15 by expressly permitting 
the Requested State to defer the initiation of extradition 
proceedings until after a prosecution in that State has been 
concluded.
    Article 17(1) 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 17(2) provides that the Requested State, if it gives 
precedence to another State, to report to the Requesting State 
on the extent to which it waives the rule of specialty with 
respect to possible further extradition.
    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 18(4) 
makes inapplicable to the surrender of such items any 
restrictive regulations concerning the import and export of 
articles and foreign currency, thereby removing a potential 
obstacle under Austria's currency control regulations.
    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, 
punished, or subjected to any other restriction on his personal 
liberty in the Requesting State in relation to 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 surrendering 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 19(4) stipulates that the rule of 
specialty shall not operate to prevent the Requesting State 
from taking measures necessary under its law to effect 
deportation of the extradited person from its territory or to 
file charges against the person solely to preclude expiration 
of the statute of limitations.
    Article 20 permits surrender to the Requesting State 
without further proceedings if the person sought consents. 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 
Party 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 Austria may consult with 
each other directly in connection with the processing of 
individual cases and in furtherance of maintaining and 
improving Treaty implementation procedures.
    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. Ratification and 
entry into force are addressed in Article 25. That Article 
provides that the Parties shall exchange instruments of 
ratification at Washington and that the treaty shall enter into 
force on the first day of the third month after the exchange of 
instruments of ratification. Upon entry into force of this 
Treaty, the Treaty between the Government of the United States 
and the Government of Austria for the extradition of fugitives 
from justice, signed at Vienna on January 31, 1930, and the 
Supplementary Extradition Convention signed at Vienna on May 
19, 1934, shall cease to have effect, with certain noted 
exceptions.
    Under Article 26, either Party may terminate the Treaty at 
any time upon written notice to the other Party, 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 any early 
date.
    Respectfully submitted.
                                                     Strobe Talbot.





                                
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