[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outdated extradition treaty between the United States and Great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.