    [Senate Treaty Document 109-17]
    [From the U.S. Government Publishing Office]

    109th Congress
     2d Session                      SENATE              Treaty Doc. 109-17
    _______________________________________________________________________

                         EXTRADITION TREATY WITH MALTA

                                   __________

                                    MESSAGE

                                      from

                       THE PRESIDENT OF THE UNITED STATES

                                  transmitting

        EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE
       GOVERNMENT OF MALTA, SIGNED ON MAY 18, 2006, AT VALLETTA, WITH AN
                              EXCHANGE OF LETTERS

    September 29, 2006.--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, September 29, 2006.
    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 Government
    of Malta, signed on May 18, 2006, at Valletta, that includes an
    exchange of letters that is an integral part of the treaty. I
    also transmit, for the information of the Senate, the report of
    the Department of State with respect to the treaty.
        The new extradition treaty with Malta would replace the
    outdated extradition treaty between the United States and Great
    Britain, signed on December 22, 1931, at London, and made
    applicable to Malta on June 24, 1935. The treaty also fulfills
    the requirement for a bilateral instrument between the United
    States and each European Union (EU) Member State in order to
    implement the Extradition Agreement between the United States
    and the EU. Two other comprehensive new extradition treaties
    with EU Member States--Estonia and Latvia--likewise also serve
    as the requisite bilateral instruments pursuant to the U.S.-EU
    Agreement, and therefore also are being submitted separately
    and individually.
        The treaty follows generally the form and content of other
    extradition treaties recently concluded by the United States.
    It would replace an outmoded list of extraditable offenses with
    a modern ``dual criminality'' approach, which would enable
    extradition for such offenses as money laundering and other
    newer offenses not appearing on the list. The treaty also
    contains a modernized ``political offense'' clause. It further
    provides that extradition shall not be refused based on the
    nationality of a person sought for any of a comprehensive list
    of serious offenses; in the past, Malta has declined to
    extradite its nationals to the United States. Finally, the new
    treaty incorporates a series of procedural improvements to
    streamline and speed the extradition process.
        I recommend that the Senate give early and favorable
    consideration to the treaty.
                                                        George W. Bush.
                              LETTER OF SUBMITTAL

                                  ----------

                                           Department of State,
                                            Washington, August 3, 2006.
    The President,
    The White House.
        The President: I have the honor to submit to you the
    Extradition Treaty between the United States and Malta, and
    related exchange of letters, signed on May 18, 2006. Upon its
    entry into force, the Treaty would replace the Extradition
    Treaty between the United States and Great Britain, signed on
    December 22, 1931, and made applicable to Malta on June 24,
    1935. It also fulfills the requirement for a bilateral
    instrument between the United States and each member state of
    the European Union implementing the Extradition Agreement
    between the United States and the European Union signed on June
    25, 2003, which is being separately submitted. A detailed,
    article-by-article analysis enclosed with this report. I
    recommend that the Treaty, and related exchange of letters, be
    transmitted to the Senate for its advice and consent to
    ratification. The Treaty is self-executing and will not require
    implementing legislation.
        Respectfully submitted.
                                                      Condoleezza Rice.
        Enclosures: Overview and analysis of the provisions of the
    Agreement.

                         U.S.-Malta Extradition Treaty

                                    overview

        The U.S.-Malta Extradition Treaty replaces an outdated 1931
    Treaty with Great Britain, which was made applicable between
    the United States and Malta in 1935. It also serves to
    implement between the United States and Malta the provisions of
    the U.S.-EU Extradition Agreement.
        The following is an Article-by-Article description of the
    provisions of the Treaty.
        Article 1 obligates each Party to extradite to the other,
    pursuant to the provisions of the Treaty, persons sought by the
    authorities in the Requesting State for trial or punishment for
    extraditable offenses.
        Article 2 concerns extraditable offenses, and is taken from
    Article 4 of the U.S.-EU Extradition Agreement. Article 2(1)
    defines an offense as extraditable if the conduct on which the
    offense is based is punishable under the laws in both States by
    deprivation of liberty for a period of more than one year or by
    a more severe penalty. Use of a pure ``dual criminality''
    clause, rather than categories of offenses listed in the 1931
    Treaty, obviates the need to renegotiate or supplement the
    Treaty as additional offenses become punishable under the laws
    in both States. Article 2(1) further defines an extraditable
    offense as including an attempt or a conspiracy to commit, or
    participation in the commission of an extraditable offense. The
    Parties intended to include the offenses of aiding, abetting,
    counseling or procuring the commission of an offense, as well
    as being an accessory to an offense, under the broad
    description of participation.
        Article 2(2) provides that if extradition is granted for an
    extraditable offense, it may also be granted for any other
    offense specified in the request if the latter offense is
    punishable by one year's deprivation of liberty or less,
    provided that all other requirements for extradition are met.
        Additional flexibility is provided by Article 2(3), which
    provides that an offense shall be an extraditable offense: (a)
    whether or not the laws in the Requesting and Requested States
    place the offense within the same category of offenses or
    describe the offense by the same terminology; (b) 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
    jurisdictional only; or (c) in criminal cases relating to
    taxes, customs duties, currency control, or commodities.
        With regard to offenses committed outside the territory of
    the Requesting State, Article 2(4) provides that extradition
    shall be granted in accordance with the provisions of the
    Treaty if the laws in the Requested State provide for the
    punishment of such conduct committed outside its territory in
    similar circumstances. If the laws in the Requested State do
    not provide for the punishment of such conduct committed
    outside of its territory in similar circumstances, the
    executive authority of the Requested State, in its discretion,
    may grant extradition provided that all other requirements of
    the Treaty are met.
        Article 3(1) provides that extradition shall not be refused
    based on the nationality of the person sought, for any offense
    falling within a comprehensive enumerated list of thirty
    offenses. The list mirrors those offenses for which surrender
    of nationals by one member state of the European Union to
    another is mandatory under the European Arrest Warrant
    procedure. In addition, the Requested State may choose to
    extradite a national for an offense not enumerated in paragraph
    1. In the event that the Requested State denies extradition
    with respect to an offense not so enumerated, it shall, at the
    request of the Requesting State, submit the case to its
    competent authorities for prosecution. Under Article 3(4), the
    Parties also may agree to expand the list at a future time.
        Article 4 sets forth bases for the denial of extradition.
    As is customary in extradition treaties, paragraph 1 provides
    that extradition shall not be granted if the offense for which
    extradition is requested constitutes a political offense.
        Article 4(2) specifies six categories of offenses that
    shall not be considered to be political offenses: (a) a murder
    or other violent crime against the Head of State of one of the
    Parties, or of a member of the Head of State's family; (b) an
    offense for which both Parties have the obligation pursuant to
    a multilateral international agreement on genocide, terrorism,
    drugs, or other crimes to extradite the person sought or to
    submit the case to their competent authorities for decision as
    to prosecution; (c) murder,manslaughter, malicious wounding, or
    willfully inflicting grievous bodily harm; (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 or firearm capable of endangering life, of causing
    substantial bodily harm or substantial property damage; and (f) an
    attempt or a conspiracy to commit, or aiding or abetting a person who
    commits or attempts to commit, any of the foregoing offenses.
        Article 4(3) provides that offenses under military law that
    are not offenses under ordinary criminal law (e.g., desertion)
    are excluded from the scope of the Treaty.
        Article 5 provides that extradition shall not be granted if
    the executive authority of the Requested State determines that
    the request is politically motivated.
        Article 6(1) provides that extradition shall not be granted
    when the person sought has been convicted or acquitted in the
    Requested State for the offense for which extradition is
    requested, or where the person sought is otherwise immune from
    prosecution for that offense by reason of that State's law
    relating to prior prosecution. Article 6(2) provides that
    extradition shall not be precluded by the fact that the
    competent authorities of the Requested State: (a) have decided
    not to prosecute the person sought for the acts for which
    extradition is requested; (b) have decided to discontinue any
    criminal proceedings that have been instituted against the
    person sought for those acts; or (c) are still investigating
    the person sought for the same acts for which extradition is
    sought.
        Letters exchanged at the time of signature of the Treaty
    and forming an integral part of it clarify the application of
    this Article in relation to the possible granting of clemency
    or amnesty to a person sought for extradition. The letters
    state that clemency and amnesty are decided under a Party's
    domestic law, and that in the event such a grant may have a
    bearing on a request for extradition, the Parties shall
    consult.
        Article 7 provides that the Requested State, if so required
    by its law, may take into account its or the Requesting State's
    laws concerning lapse of time.
        Article 8 concerns capital punishment, and is taken from
    Article 13 of the U.S.-EU Extradition Agreement. Pursuant to
    paragraph 1, 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 in the Requested State may refuse extradition unless
    the Requesting State provides an assurance that the death
    penalty will not be imposed or, if imposed, will not be carried
    out. Paragraph 2 provides that where such an assurance is
    given, the death penalty shall not be carried out.
        Article 9 establishes the procedures and describes the
    documents that are required to support a request for
    extradition. Paragraph 1, which is taken from Article 5(1) of
    the U.S.-EU Extradition Agreement, provides that all requests
    for extradition must be submitted through the diplomatic
    channel, which shall include transmission under Article 13(4).
    Among other requirements, Article 9(3) provides that a request
    for the extradition of a person sought for prosecution must be
    supported by: (a) a copy of the warrant or order of arrest
    issued by a judge or other competent authority; (b) a copy of
    the charging document, if any; and (c) such information as
    would provide a reasonable basis to believe that the person
    sought committed the offense for which extradition is sought.
        Pursuant to Article 9(4), a request for extradition of a
    person who has been convicted in absentia must be supported by
    the documents required in a request for a person who is sought
    for prosecution.
        Article 9(5), which is taken from Article 8 of the U.S.-EU
    Extradition Agreement, authorizes the furnishing of additional
    information, if the Requested State deems it necessary to
    support an extradition request, and specifies that such
    information may be requested and supplied directly between the
    United States Department of Justice and the Ministry of Justice
    of Malta. Article 9(6), addressing the submission of sensitive
    information in extradition requests, is taken from Article 14
    of the U.S.-EU Extradition Agreement.
        Article 10 concerns admissibility of documents, and is
    taken from Article 5 of the U.S.-EU Extradition Agreement. It
    provides that documents bearing the certificate or seal of
    either the Ministry of Justice or foreign affairs Ministry or
    Department of the Requesting State shall be admissible in
    extradition proceedings in the Requested State without further
    certification.
        Article 11 provides that the Requested State may refuse
    extradition of a person found guilty in absentia in the
    Requesting State, unless the Requesting State provides
    sufficient assurances that the person was afforded an adequate
    opportunity to present a defense or that there are adequate
    remedies available to him after surrender.
        Article 12 provides that all documents submitted under the
    Treaty by the Requesting State shall be in English or
    accompanied by a translation into English.
        Article 13 sets forth procedures and describes the
    information that is required for the provisional arrest and
    detention of the person sought, pending presentation of the
    formal request for extradition. The Parties intend for
    provisional arrest requests to be made generally in cases of
    urgency, as determined by the executive authority of the
    Requested State. Paragraph 1, which sets forth procedures for
    transmission of a request for provisional arrest, is taken from
    Article 7 of the U.S.-EU Extradition Agreement. Article 13(4)
    provides that if the Requested State's executive authority has
    not received the request for extradition and supporting
    documents within forty (extendable to sixty) days from the date
    of provisional arrest, the person may be discharged from
    custody. Paragraph 4 also provides an alternative channel for
    receipt of extradition requests with respect to persons who
    have been provisionally arrested, taken from Article 6 of the
    U.S.-EU Extradition Agreement. Article 13(5) explicitly
    provides that the discharge of a person from custody pursuant
    to Article 13(4) does not prejudice the person's subsequent
    rearrest and extradition if the extradition request and
    supporting documents are delivered at a later date.
        Article 14 specifies the procedures governing a decision on
    the extradition request and the surrender of the person sought.
    It requires the Requested State to promptly notify the
    Requesting State of its decision regarding a request. Such
    notification should be transmitted through the diplomatic
    channel and directly to the Requesting State's Justice
    authorities. If the request is denied in whole or in part, the
    Requested State must provide reasons for the denial and, upon
    request, copies of pertinent judicial decisions. If extradition
    is granted, the 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, the person may
    be discharged from custody, and the Requested State, in its
    discretion, may subsequently refuse extradition for the same
    offense(s).
        Article 15 addresses deferred surrender. It provides that
    the Requested State may postpone the extradition proceedings
    against a person who is being prosecuted or who is serving a
    sentence in that state.
        Article 16, on temporary surrender, is taken from Article 9
    of the U.S.-EU Extradition Agreement. Paragraph 1 provides that
    if a person whose extradition is sought is being proceeded
    against or is serving a sentence in the Requested State, the
    Requested State may temporarily surrender the person to the
    Requesting State for the purpose of prosecution. According to
    paragraph 2, the Requesting State shall keep the person so
    surrendered in custody and shall return that person to the
    Requested State after the conclusion of the proceedings against
    that person, in accordance with conditions to be determined by
    mutual agreement of the States. Time spent in custody in the
    Requesting State pending prosecution there may be deducted from
    the time to be served in the Requested State.
        Article 17 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, and is taken from
    Article 10 of the U.S.-EU Extradition Agreement. It includes,
    in paragraph 2, language establishing the applicability of this
    analysis to competing requests from the United States and from
    a member state of the European Union made to Malta under the
    European Arrest Warrant.
        Article 18 provides that the Requested State may, to the
    extent permitted under its law, seize and surrender to the
    Requesting State all items, including articles, documents, and
    evidence, that are connected with the offense in respect of
    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. The Requested
    State may condition the surrender of the items upon
    satisfactory assurances that the property will be returned to
    the Requested State as soon as practicable. The Requested State
    may also defer the surrender of such items if they are needed
    as evidence in the Requested State. The rights of third parties
    in such items are to be respected in accordance with the laws
    of the Requested State.
        Article 19 sets forth the rule of speciality 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: (a) any offense for which
    extradition was granted, or a lesser included offense shown by
    its constituent elements to be an extraditable offense and
    based on the same facts as the offense for which extradition
    was granted; (b) any offense committed after the extradition of
    the person; or (c) any offense for which the executive
    authority of the Requested State waives the rule of speciality
    and thereby consents to the person's detention, trial, or
    punishment. The treaty currently in place does not contain such
    a provision for waiver of the rule of speciality, and the
    preferred practice of States is not to waive the rule of
    speciality unless there is a treaty provision authorizing them
    to do so.
        Article 19(2) addresses the situation of an altered
    description of the offense charged occurring during a
    proceeding, and permits prosecution or sentencing only insofar
    as the offense as newly described is shown by its constituent
    elements to be an extraditable offense, is based on the same
    facts, and is punishable by the same or a lesser maximum
    penalty.
        Article 19(3) provides that a person extradited under the
    Treaty may not be the subject of onward extradition to a third
    State or an international tribunal for any offense committed
    prior to the extradition to the Requesting State unless the
    Requested State consents.
        Under Article 19(4), these restrictions shall not prevent
    the detention, trial, or punishment of an extradited person, or
    the extradition of a person to a third State, if the extradited
    person leaves the territory of the Requesting State after
    extradition and voluntarily returns to it or fails to leave the
    territory of the Requesting State within thirty (30) days of
    being in a position to leave.
        Article 20 permits surrender without further proceedings if
    the person sought waives extradition.
        Article 21 permits the person sought to consent to
    surrender in accordance with simplified extradition procedures,
    including by agreeing to waiver of protection of the rule of
    speciality.
        Article 22 governs the transit through the territory of one
    State of a person surrendered to the other State by a third
    country, and is taken from Article 12 of the U.S.-EU
    Extradition Agreement.
        Article 23 contains provisions on representation and
    expenses. 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 in connection with
    the extradition proceedings, except that the Requesting State
    pays expenses related to translation of extradition documents
    and the transportation of the person surrendered. Article 23(3)
    specifies that neither State shall make any pecuniary claim
    against the other arising out of the arrest, detention,
    examination, or surrender of persons under the Treaty.
        Article 24 provides that the United States Department of
    Justice and the Ministry of Justice of Malta may consult in
    connection with the processing of individual cases and in
    furtherance of efficient application of the Treaty.
        Article 25 makes the Treaty applicable to offenses
    committed before as well as on or after the date it enters into
    force.
        Article 26 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 on the first day following the third month after the date
    on which the Parties have exchanged notification that the
    respective internal procedures have been completed. Article
    26(2) provides that, upon entry into force of the Treaty, the
    Extradition Treaty with the United Kingdom, signed at London,
    December 22, 1931 and previously applicable to Malta, shall
    cease to have any effect.
        Article 27 stipulates that either State may terminate the
    Treaty with six months written notice to the other State
    through the diplomatic channel.
        The Department of Justice joins the Department of State in
    favoring approval of this Treaty by the Senate at the earliest
    possible date.