[Senate Treaty Document 107-6]
[From the U.S. Government Publishing Office]

107th Congress                                              Treaty Doc.
 2d Session                                                    107-6









  May 8, 2002.--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


99-118 DTP                 WASHINGTON : 2002

                         LETTER OF TRANSMITTAL


                                      The White House, May 8, 2002.
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 
Peru, signed at Lima on July 26, 2001.
    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.
    The provisions in this Treaty follow generally the form and 
content of modern extradition treaties recently concluded by 
the United States and will replace the outdated extradition 
treaty in force between the two countries signed in 1899. The 
Treaty will, upon entry into force, enhance cooperation between 
the law enforcement communities of the two countries. It will 
make a significant contribution to international law 
enforcement efforts against serious offenses, including 
terrorism, organized crime, and drug-trafficking.
    I recommend that the Senate give early and favorable 
consideration to the Treaty and give its advice and consent to 

                                                    George W. Bush.
                          LETTER OF SUBMITTAL


                                                    April 20, 2002.
    The President: I have the honor to submit to you the 
Extradition Treaty Between the United States of America and the 
Republic of Peru, signed at Lima on July 26, 2001. Upon its 
entry into force, the Treaty would replace the outdated 
extradition treaty now in force between the two countries that 
was signed in 1899. I recommend that the Treaty be transmitted 
to the Senate for its advice and consent to ratification.
    The Treaty follows generally the form and content of other 
extradition treaties recently concluded by the United States. 
The Treaty represents a major step forward in U.S. efforts to 
strengthen cooperation with countries in the region in 
combating terrorism, organized crime, drug trafficking and 
other offenses. It is an important part of 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.
    The Treaty is designed to be self-executing and will not 
require implementing legislation.
    Article I obligates each Contracting State to extradite to 
the other, pursuant to the provisions of the Treaty, persons 
whom the authorities in the Requesting State have charged with, 
found guilty of, or sentenced for an extraditable offense.
    Article II concerns extraditable offenses. Article II(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, as in the 1899 
extradition treaty, obviates the need to renegotiate or 
supplement the Treaty as additional offenses become punishable 
under the laws in both Contracting States.
    Article II(2) defines an extraditable offense further as 
including an attempt or conspiracy to commit, or association or 
participation in the commission of, an offense described in 
paragraph 1.
    Additional flexibility is provided by Article II(3), which 
provides that an offense shall be an extraditable offense 
regardless of (a) whether the laws in the Contracting States 
place the offense within a different category of offenses or 
describe the offense by different terminology, so long as the 
underlying conduct is criminal in both States; (b) whether the 
offense is one for which the laws of the Requesting State 
require the showing of such matters as interstate 
transportation, or use of the mails or other facilities 
affecting interstate or foreign commerce for the purpose of 
establishing jurisdiction of its courts; or (c) where the 
offense was committed.
    Finally, Article II(4) provides that if extradition is 
granted for one or more extraditable offenses, it shall also be 
granted for any other offense specified in the request even if 
that offense does not meet the minimum penalty requirement, 
provided that all other extradition requirements are met.
    Article III provides that extradition shall not be refused 
on the ground that the person sought is a national of the 
Requested State.
    Article IV sets forth bases for the denial of extradition. 
Paragraph 1 bars extradition: (a) if the person sought has been 
tried and convicted or acquitted in the Requested State for the 
same offense (but does not preclude extradition if the 
competent authorities in the Requested State have decided not 
to prosecute such person for the same acts or have decided to 
discontinue criminal proceedings against the person for those 
acts); or (b) if prosecution of the offense or execution of the 
penalty is barred by lapse of time under the laws of the 
Requested State.
    As customary in extradition treaties, Article IV(2) 
provides that extradition shall not be granted if the offense 
for which extradition is requested constitutes a political 
offense. It also specifies the following specific categories of 
offenses that are not to be considered political offenses: (a) 
a murder or other violent crime against a Head of State of one 
of the Contracting States, or a member of a Head of State's 
family; (b) genocide, as described in the Convention on the 
Prevention and Punishment of the Crime of Genocide, done at 
Paris on December 9, 1948; (c) an offense for which both 
Contracting States have the obligation pursuant to a 
multilateral international agreement to extradite the person 
sought or to submit the case to their competent authorities for 
decision as to prosecution, including but not limited to 
illicit drug trafficking and related offenses, as described in 
the United Nations Convention Against Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances, done at Vienna on 
December 20, 1988; and offenses related to terrorism, as set 
forth in multilateral international agreements to which both 
Contracting States are parties (e.g., the Convention for the 
Suppression of Unlawful Seizure of Aircraft, done at The Hague 
on December 16, 1970); and (d) an attempt or conspiracy to 
commit, or association or participation in the commission of, 
any of the foregoing offenses.
    Article IV(3) requires that extradition not be granted if 
the executive authority of the Requested State determines that 
the request was politically motivated.
    Article IV(4) provides that the executive authority of the 
Requested State may also refuse extradition for offenses under 
military law which are not offenses under ordinary criminal law 
(e.g., desertion).
    Finally, under Article IV(5), the executive authority of 
the Requested State may refuse extradition if the person sought 
would be tried, or punished as the result of a trial, under 
extraordinary criminal laws or procedures in the Requesting 
State. This provision was included in the Treaty at the 
instance of the U.S. delegation in response to concerns over 
due process before special terrorism tribunals in Peru. Under 
this paragraph, the executive authority of the Requested State 
would have discretion to deny extradition if the person sought 
would be or has been tried in a special terrorism tribunal and 
there were no procedures in place to safeguard the due process 
rights of the accused.
    Article V concerns capital punishment. Under Article V, 
when an offense for which extradition is sought is punishable 
by death under the laws in the Requesting State but not under 
the laws in the Requested State, the executive authority of the 
Requested State may refuse extradition unless the Requesting 
State provides an assurance that the person sought will not be 
executed. The United States has agreed to similar formulations 
in other modern extradition treaties (e.g., those with 
Argentina, the Republic of Korea and India). In cases in which 
such an assurance is provided, the death penalty shall not be 
carried out, even if imposed by the courts in the Requesting 
State. Article V(2) provides further that, except in instances 
in which the death penalty applies, extradition shall not be 
refused, nor conditions imposed, on the basis that the penalty 
for the offense is greater in the Requesting State than in the 
Requested State.
    Article VI establishes the procedures and describes the 
documents that are required to support a request for 
extradition. All requests for extradition must be submitted 
through the diplomatic channel. Among other requirements, 
Article VI(3) provides that a request for the extradition of a 
person sought for prosecution must be supported by such 
evidence as would be sufficient to justify committal for trial 
of the person if the offense had been committed in the 
Requested State. Under Article VI(5), if the Requested State 
requires additional evidence or information to enable it to 
decide on the request for extradition, such evidence or 
information shall be submitted to it within such time as that 
State shall require.
    Article VII requires that all documents submitted by the 
Requesting State be accompanied by a translation into the 
language of the Requested State and establishes the procedures 
under which such documents shall be received and admitted as 
evidence in the Requested State.
    Article VIII sets forth procedures and describes the 
information that is required for the provisional arrest and 
detention of the person sought, in case of urgency, pending 
presentation of the formal request for extradition. In 
particular, Article VIII(4) provides that if the Requested 
State's executive authority has not received the extradition 
request and supporting documents required by Article VI within 
sixty days from the date of the provisional arrest, the person 
may be discharged from custody. Article VIII(5) explicitly 
provides that such a discharge from custody shall not be an 
obstacle to the person's re-arrest and extradition if the 
formal extradition request is received later.
    Article IX specifies the procedures governing a decision on 
the extradition request and the surrender of the person sought. 
It requires the Requested State to process the extradition 
request in accordance with the procedures set forth in its law 
and the Treaty, and to promptly notify the Requesting State, 
through the diplomatic channel, of its decision regarding a 
request. If extradition is granted, the Contracting States 
shall agree on the time and place for the surrender of the 
person sought. If the person sought is not removed from the 
territory of the Requested State within the time period 
prescribed by the law of that State, if any, the person may be 
discharged from custody and the Requested State may thereafter 
refuse extradition for the same offense. Article IX also 
provides that if unforeseen circumstances prevent the surrender 
of the person sought, the States shall agree on a new date, 
consistent with the laws of the Requested State. If the request 
is denied in whole or in part, Article IX(4) requires the 
Requested State to provide an explanation of the reasons for 
the denial and, upon request, copies of pertinent decisions.
    Article X addresses deferred and temporary surrender. Under 
Article X(1) if a person whose extradition is sought is being 
prosecuted or is serving a sentence in the Requested State, 
that State may postpone the extradition proceedings against, or 
the surrender of, that person until its prosecution has been 
concluded or the sentence has been served. Alternatively, 
Article X(2) provides that in such circumstances the Requested 
State may, in exceptional cases, temporarily surrender the 
person to the Requesting State exclusively for the purpose of 
prosecution. The person so surrendered is to be kept in custody 
in the Requesting State and returned to the Requested State 
after the conclusion of the proceedings against that person, on 
conditions agreed between the Contracting States.
    Article XI provides a non-exclusive list of factors to be 
considered by the executive authority of the Requested State in 
determining to which State to surrender a person whose 
extradition is sought by more than one State.
    Article XII provides that the Requested State may, to the 
extent permitted under its law, seize and surrender to the 
Requesting State all articles, documents and evidence connected 
with the offense for which extradition is granted. Such items 
may be surrendered even if the extradition cannot be carried 
out due to the death, disappearance, or escape of the person 
sought. Surrender of such items may be deferred for such time 
as is deemed necessary for an investigation or proceeding in 
the Requested State or may be made on condition that they be 
returned to the Requested State as soon as practicable. Article 
XII(3) provides that the rights of the Requested State or of 
third parties in such items must be duly respected.
    Article XIII sets forth the rule of specialty under 
international law. Paragraph 1 provides, subject to specific 
exceptions set forth in paragraph 3, that a person extradited 
under the Treaty may not be detained, tried or punished in the 
Requesting State except for any offense (a) for which 
extradition was granted, or a differently denominated offense 
based on the same facts as the offense for which extradition 
was granted, provided such offense is extraditable, or is a 
lesser included offense; (b) committed after the extradition of 
the person; or (c) for which the executive authority of the 
Requested State consents to the person's detention, trial or 
punishment. Article XIII (2) provides that a person extradited 
under the Treaty may not be extradited to a third State for an 
offense committed prior to surrender unless the surrendering 
State consents. Under paragraph 3, these restrictions do not 
apply if the person has left the jurisdiction of the State to 
which surrendered and voluntarily returned or has had the 
opportunity to leave and has not done so within ten days.
    Article XIV permits surrender without further proceedings 
if the person sought consents to be surrendered.
    Article XV governs the transit through the territory of one 
Contracting State of a person being surrendered to the other 
Contracting State by a third country.
    Article XVI contains provisions on representation and 
expenses that are similar to those found in other modern U.S. 
extradition treaties. Specifically, the Requested State is 
required to advise, assist, appear in court on behalf of, and 
represent the interests of the Requesting State in any 
proceedings arising out of a request for extradition. The 
Requested State also bears all expenses incurred in that State 
by reason of the extradition proceedings, except that the 
Requesting State pays expenses related to translation of 
documents and the transportation to the Requesting State of the 
person sought. Article XVI (3) specifies that neither 
Contracting State shall make any pecuniary claim against the 
other arising out of the arrest, detention, custody, 
examination, or surrender of persons under the Treaty.
    Article XVII provides that the U.S. Department of Justice 
and the Peruvian Ministry of Justice may consult with each 
other directly in connection with the processing of individual 
cases and in furtherance of maintaining and improving 
procedures for the implementation of the Treaty.
    Article XVIII, like the parallel provisions in almost all 
recent U.S. extradition treaties, makes the Treaty applicable 
to extradition requests pending on the date of its entry into 
force and to subsequent extradition requests, even if the 
crimes were committed prior to the date of entry into force, so 
long as they constituted offenses under the laws in both 
Contracting States at the time of their commission.
    Article XIX contains final clauses dealing with the 
Treaty's entry into force and termination. It provides that the 
Treaty is subject to ratification and that the Treaty shall 
enter into force upon the exchange of instruments of 
ratification, which is to take place as soon as possible. 
Either State may terminate the Treaty with six months written 
notice to the other State. Article XIX (2) provides that, upon 
entry into force of the Treaty, the Treaty on Extradition 
Between the United States of America and the Republic of Peru, 
signed at Lima November 28, 1899, and the related agreement of 
February 15, 1990, done at Cartagena, Colombia, shall become 
null and void.
    A Technical Analysis explaining in detail the provisions of 
the Treaty is being prepared by the U.S. negotiating 
delegation, consisting of representatives from the Departments 
of State and Justice, and will be transmitted 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 the earliest 
possible date.
            Respectfully submitted,
                                                   Colin L. Powell.