[Senate Treaty Document 110-11]
[From the U.S. Government Publishing Office]
110th Congress
2d Session SENATE Treaty Doc.
110-11
_______________________________________________________________________
EXTRADITION TREATY WITH ROMANIA AND
PROTOCOL TO THE TREATY ON MUTUAL LEGAL
ASSISTANCE IN CRIMINAL MATTERS WITH
ROMANIA
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND ROMANIA
(THE ``EXTRADITION TREATY'' OR THE ``TREATY'') AND THE PROTOCOL TO THE
TREATY BETWEEN THE UNITED STATES OF AMERICA AND ROMANIA ON MUTUAL LEGAL
ASSISTANCE IN CRIMINAL MATTERS (THE ``PROTOCOL''), BOTH SIGNED AT
BUCHAREST ON SEPTEMBER 10, 2007
January 22, 2008.--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, January 22, 2008.
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 Romania (the
``Extradition Treaty'' or the ``Treaty'') and the Protocol to
the Treaty between the United States of America and Romania on
Mutual Legal Assistance in Criminal Matters (the ``Protocol''),
both signed at Bucharest on September 10, 2007. I also
transmit, for the information of the Senate, the reports of the
Department of State with respect to the Extradition Treaty and
Protocol.
The Extradition Treaty would replace the outdated
Extradition Treaty between the United States and Romania,
signed in Bucharest on July 23, 1924, and the Supplementary
Extradition Treaty, signed in Bucharest on November 10, 1936.
The Protocol amends the Treaty Between the United States of
America and Romania on Mutual Legal Assistance in Criminal
Matters, signed in Washington on May 26, 1999 (the ``1999
Mutual Legal Assistance Treaty''). Both the Extradition Treaty
and the Protocol also fulfill the requirements for bilateral
instruments (between the United States and each European Union
(EU) Member State) that are contained in the Extradition and
Mutual Legal Assistance Agreements between the United States
and the EU currently before the Senate.
The Extradition 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, and it provides that neither Party shall
refuse extradition based on the citizenship of the person
sought. Finally, the new Treaty incorporates a series of
procedural improvements to streamline and speed the extradition
process. The Protocol primarily serves to amend the 1999 Mutual
Legal Assistance Treaty in areas required pursuant to the U.S.-
EU Mutual Legal Assistance Agreement, specifically: mutual
legal assistance to administrative authorities; expedited
transmission of requests; use limitations; identification of
bank information; joint investigative teams; and video
conferencing.
I recommend that the Senate give early and favorable
consideration to the Extradition Treaty and the Protocol, along
with the U.S.-EU Extradition and Mutual Legal Assistance
Agreements and the other related bilateral instruments between
the United States and European Union Member States.
George W. Bush.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, November 1, 2007.
The President,
The White House.
The President: I have the honor to submit to you the
Extradition Treaty between the United States of America and
Romania (the ``Extradition Treaty'') and the Protocol to the
Treaty between the United States of America and Romania on
Mutual Legal Assistance in Criminal Matters (the ``Protocol''),
both signed at Bucharest on September 10, 2007. Upon its entry
into force, the Extradition Treaty would replace the
Extradition Treaty between the United States of America and
Romania, signed at Bucharest on July 23, 1924, and the
Supplementary Extradition Treaty, signed at Bucharest on
November 10, 1936. The Extradition Treaty and the Protocol
fulfill the requirements of the Agreements on Extradition and
Mutual Legal Assistance between the United States of America
and the European Union, both signed on June 25, 2003, which
were transmitted to the Senate on September 28, 2006, for
implementing bilateral instruments between the United States
and each member state of the European Union. The article-by-
article analyses of the two instruments are enclosed with this
report. I recommend that the Extradition Treaty and the
Protocol be transmitted to the Senate for its advice and
consent to ratification. Both instruments are self-executing
and will not require implementing legislation.
Respectfully submitted.
Condoleezza Rice.
Enclosures: Overviews and analyses of the provisions of the
Extradition Treaty and Protocol.
Protocol to the Treaty Between Romania and the United States of America
on Mutual Legal Assistance in Criminal Matters
OVERVIEW
The Protocol to the Treaty between Romania and the United
States of America on Mutual Legal Assistance in Criminal
Matters (the ``Protocol'') serves to implement, as between the
United States and Romania, the provisions of the 2003 Agreement
on Mutual Legal Assistance between the United States of America
and the European Union (the ``U.S.-EU Mutual Legal Assistance
Agreement''). It does this through amendment of the Treaty
between Romania and the United States of America on Mutual
Legal Assistance in Criminal Matters, signed at Washington on
May 26, 1999 (the ``1999 Mutual Legal Assistance Treaty'').
The following is an article-by-article description of the
provisions of the Protocol.
Article 1 of the Protocol incorporates Article 8 of the
U.S.-EU Mutual Legal Assistance Agreement (``Mutual legal
assistance to administrative authorities''), thereby providing
an express legal basis for the provision of assistance to an
administrative authority investigating conduct with a view to
criminal prosecution or referral to criminal investigation or
prosecution authorities, pursuant to its specific
administrative or regulatory authority to undertake such
investigation. If the administrative authority anticipates that
no prosecution or referral will take place, assistance is not
available. This provision is added as Article 1 bis of the 1999
Mutual Legal Assistance Treaty.
Article 2 of the Protocol replaces Article 2 of the 1999
Mutual Legal Assistance Treaty. The only change is that the
amended treaty will reflect that, for Romania, the Central
Authority is the Ministry of Justice.
Article 3 of the Protocol replaces Article 4(1) of the 1999
Mutual Legal Assistance Treaty and provides that requests
transmitted by fax or email shall be considered to be in
writing. It also adds Article 4( 1) bis to the 1999 Mutual
Legal Assistance Treaty to incorporate Article 7 of the U.S.-EU
Mutual Legal Assistance Agreement (``Expedited transmission of
requests''), which provides that requests for mutual legal
assistance, and communications related thereto, may be made by
expedited means of communications, including fax or email, with
formal confirmation to follow where required by the requested
State. The requested State may respond to the request by any
such expedited means of communication.
Article 4 of the Protocol incorporates Article 6(2) of the
U.S.-EU Mutual Legal Assistance Agreement, providing that the
costs associated with establishing and servicing a video-
conference for mutual legal assistance purposes, as well as the
allowances and expenses related to travel of persons in
relation to such video-conferences, will be borne by the
Requesting State unless otherwise agreed. This provision
replaces Article 6( 1) of the 1999 Mutual Legal Assistance
Treaty.
Article 5 of the Protocol incorporates Article 9 of the
U.S.-EU Mutual Legal Assistance Agreement (``Limitations on use
to protect personal and other data'') by replacing Article 7 of
the 1999 Mutual Legal Assistance Treaty. Paragraph 1 of the new
Article 7 permits the Requesting State to use evidence or
information it has obtained from the requested State for its
criminal investigations and proceedings, for preventing an
immediate and serious threat to its public security, for non-
criminal judicial or administrative proceedings directly
related to its criminal investigations or proceedings, for non-
criminal judicial or administrative proceedings for which
assistance was provided under Article 1 of the Protocol, and
for any other purpose if the information or evidence was made
public within the framework of the proceedings for which it was
transmitted or pursuant to the above permissible uses. Other
uses of the evidence or information require the prior consent
of the requested State.
Paragraph 2(a) specifies that the article does not preclude
the requested State from imposing additional conditions where
the particular request for assistance could not be granted in
the absence of such conditions. Where such additional
conditions are imposed, the requested State may require the
requesting State to give information on the use made of the
evidence or information.
Paragraph 2(b) provides that generic restrictions with
respect to the legal standards of the requesting State for
processing personal data may not be imposed by the requested
State as a condition under paragraph 2(a) to providing evidence
or information. This provision is further elaborated upon in
the explanatory note to the U.S.-EU Mutual Legal Assistance
Agreement (regarding Article 9(2)(b) of that Agreement), which
specifies that the fact that the requesting and requested
States have different systems of protecting the privacy of data
does not give rise to a ground for refusal of assistance and
may not as such give rise to additional conditions under
paragraph 2(a). Such refusal of assistance could only arise in
exceptional cases in which, upon balancing the important
interests involved in the particular case, furnishing the
specific data sought by the requesting State would raise
difficulties so fundamental as to be considered by the
requested State to fall within the essential interests grounds
for refusal.
Paragraph 3 provides that where, following disclosure to
the requesting State, the requested State becomes aware of
circumstances that may cause it to seek additional conditions
in a particular case, it may consult with the requesting State
to determine the extent to which the evidence or information
can be protected.
Article 6 of the Protocol incorporates Article 4 of the
U.S.-EU Agreement (``Identification of Bank Information'') as
Article 17 bis of the 1999 Mutual Legal Assistance Treaty.
Paragraph 1(a) requires the requested State to promptly
ascertain if banks located in its territory possess information
on whether a natural or legal person suspected of or charged
with a criminal offense as designated pursuant to paragraph 4,
holds a bank account or accounts. Paragraph 1(b) permits, but
does not obligate, the requested State to ascertain whether
bank information exists pertaining to convicted persons, or
whether there is information in the possession of non-bank
financial institutions, or financial transactions other than
those related to accounts.
Paragraph 2 requires a request for this form of cooperation
to include, first, the identity of the natural or legal person
relevant to locating such accounts or transactions; second,
sufficient information to enable the competent authority of the
requested State to reasonably suspect that such person engaged
in a criminal offense and that banks or non-bank financial
institutions in the requested State may have the information
requested and to conclude that the information sought relates
to the criminal investigation or proceeding for which
assistance is sought; and, third, as much information as
possible concerning which banks or other institutions may have
the information, in order to reduce the breadth of the inquiry.
Paragraph 3 designates the U.S. channel of communication
for requests for assistance under this article as the U.S.
legal attache to Romania representing the Drug Enforcement
Administration, the Bureau of Immigration and Customs
Enforcement, and the Federal Bureau of Investigation (depending
on the nature of the investigation or proceeding giving rise to
the request). For Romania, the designated channel is the
Prosecutor's Office of the High Court of Cassation and Justice.
Paragraph 3 also allows the United States and the European
Union to modify these designations by exchange of diplomatic
notes after the entry into force of the Protocol.
Paragraph 4 provides that the United States and Romania
will provide assistance under this article with respect to
money laundering and terrorist activity punishable under the
laws of both states, and with respect to such other criminal
activity as to which may subsequently be agreed by the Parties.
U.S. negotiators verified that under Romanian law assistance
will be available for a wide range of conduct associated with
terrorism (which includes the conduct criminalized in
international counterterrorism conventions to which they are
party) and money laundering with respect to an extremely broad
range of predicate offenses.
Paragraph 5 indicates that the Requested State shall
respond to a request for production of the records concerning
the accounts or transactions identified pursuant to this
article in accordance with the other provisions of the 1999
Mutual Legal Assistance Treaty, as amended by the Protocol.
Article 7 of the Protocol incorporates Article 5 of the
U.S.-EU Mutual Legal Assistance Agreement (``Joint
Investigative Teams''), and is added as Article 17 ter of the
1999 Mutual Legal Assistance Treaty.
Paragraph 1 of the new Article 17 ter provides that joint
investigative teams may be established and operated in the
respective territories of the United States and Romania, where
the Parties agree to do so.
Under paragraph 2, the manner of the team's operation shall
be agreed between the competent authorities, as determined by
the respective States concerned.
Paragraph 3 describes channels of communication so as to
facilitate direct communication between law enforcement
authorities with respect to cases arising under the Treaty. The
paragraph provides that the competent authorities determined by
the respective States concerned shall communicate directly for
purposes of establishing and operating such teams, except where
the complexity, scope, or other circumstances involved are
deemed to require more central coordination, in which case the
States concerned may agree upon other channels of
communication. This approach facilitates speed, efficiency, and
clarity by providing for direct communications in most cases
among the affected law enforcement components, rather than
through a mutual legal assistance request transmitted through
the Central Authority, as would otherwise take place pursuant
to a bilateral Mutual Legal Assistance Treaty.
Paragraph 4 states that, where the joint investigative team
needs investigative measures to be taken in one of the States
involved in the team, a member of the team of that State may
request its own competent authorities to take those measures
without the other State having to submit a mutual legal
assistance request. The legal standard for obtaining the
measure is the applicable domestic standard. Thus, where an
investigative measure is to be carried out in the United
States, for example, a U.S. team member could do so by invoking
existing domestic investigative authority, and would share
resulting information or evidence seized pursuant to such an
action with the foreign authorities. A formal mutual legal
assistance request would not be required. In a case in which
there is no domestic U.S. jurisdiction and consequently a
compulsory measure cannot be carried out based on domestic
authority, the other provisions of the 1999 Mutual Legal
Assistance Treaty, as amended by the Protocol, may furnish a
separate legal basis for carrying out such a measure.
Article 8 of the Protocol incorporates Article 6 of the
U.S.-EU Mutual Legal Assistance Agreement (``Video
Conferencing''), except that Article 6 (2), relating to the
costs of video conferencing is addressed, as noted above, in
Article 4 of the Protocol. Article 8 is applied as Article 17
quater of the 1999 Mutual Legal Assistance Treaty.
Paragraph 1 of the new Article 17 quater provides that the
use of video transmission technology shall be available between
the United States of America and Romania for taking testimony
in a proceeding for which mutual legal assistance is available.
The procedures to be applied in taking such testimony are as
otherwise set forth in the 1999 Mutual Legal Assistance Treaty,
as amended by the Protocol.
Paragraph 2 provides for a consultation mechanism in order
to facilitate legal, technical or logistical issues that may
arise in the execution of a particular request.
Paragraph 3 provides that the making of intentionally false
statements or other witness or expert misconduct shall be
punishable in the requested State in the same manner as if such
conduct had been committed in the course of a domestic
proceeding. This is already the case where the United States
has been requested to facilitate the taking of video testimony
from a witness or expert located in the United States on behalf
of a foreign State, since the proceeding to execute the request
is a U.S. proceeding and therefore penalties under U.S. law for
perjury, obstruction of justice, or contempt of court are
applicable.
Paragraph 4 specifies that the availability of video
transmission technology for purposes of facilitating the taking
of testimony does not mean that other means of obtaining
testimony are no longer available.
Paragraph 5 makes clear that the requested State may also
permit the use of video conferencing technology for purposes
other than providing testimony, including for purposes of
identification of persons or objects, and taking of
investigative statements (to the extent these are not
considered to be testimony under the law of the requesting
State).
Article 9 of the Protocol sets out the temporal application
of the Protocol in accordance with Article 12 of the U.S.-EU
Mutual Legal Assistance Agreement. Paragraph 1 provides that
the Protocol will apply to offenses committed before as well as
after it enters into force. Paragraph 2 provides that the
Protocol shall apply to requests for assistance made after its
entry into force; however, Articles 3 (``Expedited transmission
of requests''), 4 (``Cost of video conferencing''), and 8
(``Video conferencing'') shall apply to requests pending in the
Requested State at the time the Protocol enters into force.
Article 10 of the Protocol provides for entry into force
and termination of the Protocol. Entry into force of the
Protocol occurs, following an exchange of notifications
regarding the completion of applicable internal procedures, on
the date of entry into force of the U.S.-EU Mutual Legal
Assistance Agreement. In the event of termination of the U.S.-
EU Mutual Legal Assistance Agreement, the Protocol also will
terminate. Thereupon the 1999 Mutual Legal Assistance Treaty
will apply along with any provisions of the Protocol for which
the United States and Romania agree to continue application.
The Department of Justice joins the Department of State in
urging approval of this Protocol by the Senate at the earliest
possible date.
U.S.-Romania Extradition Treaty
OVERVIEW
The U.S.-Romania Extradition Treaty (the ``Extradition
Treaty'' or the ``Treaty'') replaces an outdated 1924
extradition treaty, as amended by a 1936 supplementary treaty.
This new Extradition Treaty also serves to implement, as
between the United States and Romania, the provisions of the
Agreement on Extradition between the United States of America
and the European Union (``the U.S.-EU Extradition Agreement''),
currently before the Senate.
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 whom the
authorities in the Requesting State have charged with, found
guilty of, or convicted of an extraditable offense.
Article 2, which is taken from Article 4 of the U.S.-EU
Extradition Agreement, defines extraditable offenses. 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. The approach taken in the
Treaty with respect to extraditable offenses is consistent with
the modem ``dual criminality'' approach, rather than the old
``list'' approach, and is one of the key benefits of the new
Treaty. Use of a ``dual criminality'' clause, rather than the
categories of offenses listed in the 1924 Treaty, obviates the
need to renegotiate or supplement the Treaty as additional
offenses become punishable under the laws in both States and
ensures a comprehensive coverage of criminal conduct for which
extradition might be sought.
Article 2(2) further defines an extraditable offense to
include an attempt or a conspiracy to commit, or participation
in the commission of, an extraditable offense. The Parties
intended to include, under the broad description of
``participation,'' the offenses of aiding, abetting,
counseling, or procuring the commission of an offense, as well
as being an accessory to an offense.
Additional direction 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 acts or omissions constituting 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) whether or not, in
criminal cases relating to taxes, customs duties, currency
control, or commodities, the laws of the Requesting and
Requested States provide for the same kinds of taxes, customs
duties or controls on currency, or on the import or export of
the same kinds of 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 of the Requested State provide for the
punishment of such conduct committed outside its territory in
similar circumstances. If the laws of 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 proceed with extradition provided that all other
requirements of the Treaty are met.
Article 2(5) provides that, if extradition is granted for
an extraditable offense, it shall 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.
Article 3 provides that extradition shall not be refused
based on the citizenship of the person sought. This provision
reflects a significant development in the U.S.-Romania
extradition relationship. The 1924 Treaty does not require that
the Parties extradite their citizens, and this provision
required an amendment both to the Romanian Constitution and
Romania's domestic law on international extradition.
Article 4 governs political and military offenses as a
basis 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 a 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 to extradite the person sought or to submit
the case to their competent authorities for decision as
to prosecution;
(c) murder, manslaughter, malicious wounding,
inflicting grievous bodily harm, assault with intent to
cause serious physical injury, or serious sexual
assault;
(d) an offense involving kidnapping, abduction, or
any form of unlawful detention, including the taking of
a hostage;
(e) placing, using, threatening to use or possessing
an explosive, incendiary, or destructive device capable
of endangering life, causing substantial bodily harm,
or causing substantial property damage; and
(f) a conspiracy or attempt to commit, or
participation in the commission of any of the offenses
set forth in.(a)-(e).
Article 4(3) provides that, notwithstanding Article 4(2),
extradition shall not be granted if the executive authority of
the Requested State determines that the request was politically
motivated.
Article 4(4) provides that the competent authority of the
Requested State may refuse extradition for offenses under
military law that are not offenses under ordinary criminal law.
Desertion would be an example of such an offense.
Article 4(5) provides that the Executive Branch is the
``competent authority'' for the United States for purposes of
Article 4.
Article 5 governs those circumstances in which the person
whose extradition is sought has been the subject of a prior
prosecution. Article 5(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.
Article 5(2) provides that extradition shall not be
precluded by the fact that the competent authorities of the
Requested State have decided:
(a) not to prosecute the person sought for the acts
for which extradition is requested;
(b) to discontinue any criminal proceedings which
have been instituted against the person sought for
those acts; or
(c) to investigate the person sought for the same
acts.
Article 6 provides that extradition may be denied if
prosecution of the offense or execution of the penalty is
barred by lapse of time under the law of the Requesting State.
Acts that would interrupt or suspend the prescriptive period in
the Requesting State are to be given effect by the Requested
State.
Article 7, which is taken from Article 13 of the U.S.-EU
Extradition Agreement, concerns capital punishment. It provides
that, 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 Requested State
may grant extradition on the condition that the death penalty
shall not be imposed on the person sought, or if for procedural
reasons such condition cannot be complied with by the
Requesting State, on condition that the death penalty, if
imposed, shall not be carried out. If the Requesting State
accepts extradition subject to such a condition, it must comply
with the condition.
Article 8 establishes extradition procedures and describes
the documents required to support a request for extradition.
Article 8(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 through the channel specified
in Article 12(4) of the Treaty.
Article 8(2) specifies the documents, information, and
legal texts that shall support all extradition requests.
Article 8(3) provides that a request for the extradition of a
person who is charged with an offense must also be supported
by: a) a copy of the warrant or order of arrest issued by a
judge, court, or other competent authority; b)a copy of the
charging document; and c) such information as would provide a
reasonable basis to believe that the person sought committed
the offense for which extradition is sought.
Article 8(4) sets forth the items, in addition to those set
forth in Article 8(2), that must accompany a request for the
extradition relating to a person who has been found guilty or
been convicted of the offense for which extradition is sought.
Pursuant to Article 8(4)(d), a request for extradition of a
person who has been convicted in absentia must also be
supported by those documents required for a request for a
person who has been charged with an offense, as well as
information regarding the circumstances under which the person
was absent from the proceedings.
Article 9, which is taken from Article 8 of the U.S.-EU
Extradition Agreement, authorizes the Requested State to
require the Requesting State to furnish additional information
to support an extradition request, if the Requested State deems
it necessary to fulfill the requirements of the Treaty. It
specifies that such information may be requested and supplied
directly between the United States Department of Justice and
the Ministry of Justice of Romania.
Article 10, which is taken from Article 5(2) of the U.S.-EU
Extradition Agreement, concerns admissibility of documents. It
provides that documents bearing the certificate or seal of
either the Ministry or Department of Justice or the 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 all documents submitted under the
Treaty by the Requesting State shall be translated into the
language of the Requested State.
Article 12 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 extradition request and supporting documents. Article
l2( 1) provides for provisional arrest and sets forth
procedures for transmission of a request for provisional
arrest. Article 12(2) specifies the information that must
accompany an application for provisional arrest. Article 12(3)
requires the Requested State to notify the Requesting State of
the disposition of the provisional arrest request and the
reasons for any inability to proceed with the request.
Article 12(4) provides that, if the Requested State has not
received the request for extradition and supporting documents
within sixty days of the date of provisional arrest, the person
shall be discharged, unless good cause is shown to maintain
custody. Consistent with Article 7 of the U.S.-EU Extradition
Agreement, Article 12(4) provides an alternative channel for
receipt of extradition requests applicable with respect to
persons who have been provisionally arrested, namely, through
transmission of the request to the Embassy of the Requested
State in the Requesting State. Article 12(5) provides that the
discharge of a person from custody pursuant to Article 12(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 13 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. If the
request is denied in whole or in part, the Requested State must
provide an explanation of the 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 14 addresses temporary and deferred surrender.
Article 14(1), on temporary surrender, is taken from Article 9
of the U.S.-EU Extradition Agreement. It 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. 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
pros'ecution there may be deducted from the time to be served
in the Requested State.
Article 14(2), on deferred surrender, provides that the
Requested State may postpone the extradition proceedings
against a person who is being prosecuted or who is serving a
sentence in the Requested State until that prosecution has
concluded or sentence has been served.
Article 15, which is taken from Article 10 of the U.S.-EU
Extradition Agreement, governs the situation in which the
Requested State receives requests for the extradition or
surrender of the same person from more than one State, either
for the same offense or for different offenses. In the event of
requests by more than one State for the same person, the
executive authority of the Requested State shall determine to
which State, if any, it will surrender that person. In the
event that Romania receives requests both from the United
States and pursuant to a European arrest warrant for the same
person, Romania's judicial authority, or such other authority
as Romania may designate, shall determine to which State, if
any, it will surrender the person. Article 15(3) provides a
non-exclusive list of factors to be considered by the Requested
State in determining to which State to surrender a person who
is sought by more than one State.
Article 16 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,
evidence, and proceeds, 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 from the Requesting State 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 17 sets forth the Rule of Specialty, which, subject
to specific exceptions set forth in paragraph 3, prohibits a
person extradited under the Treaty from being detained, tried,
or punished in the Requesting State except for:
(a) any offense 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) any offense committed after the extradition of
the person; or
(c) any offense for which the competent authority of
the Requested State consents to the person's detention,
trial, or punishment.
Article 17(2) provides that a person extradited under the
Treaty may not be the subject of onward extradition or
surrender for any offense committed prior to the extradition to
the Requesting State unless the Requested State consents. This
provision would preclude Romania from transferring a fugitive
surrendered to it by the United States to a third country or
international tribunal without the consent of the United
States.
Article 17(3) sets forth exceptions to the rule of
specialty. It provides that the restrictions set forth under
Article 17 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 either 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 twenty days of being free to do so.
Article 17(4) provides that the Executive Branch is the
``competent authority'' for the United States for purposes of
Article 17.
Article 18, which is taken from Article 11 of the U.S.-EU
Extradition Agreement, permits surrender without further
proceedings if the person sought consents to being surrendered
to the Requesting State. The consent of the person sought may
include agreement to waiver of protection of the rule of
specialty.
Article 19, which is taken from Article 12 of the U.S.-EU
Extradition Agreement, governs the transit through the
territory of one State of a person surrendered to the other
State by a third country, or to a third country by the other
State. .
Article 20 contains provisions regarding representation and
the expenses associated with extradition. 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. Article 20(2) establishes that the Requested State
bears all expenses incurred in that State in connection with
the extradition proceedings, except that the Requesting State
pays expenses related to the translation of extradition
documents and the transportation of the person surrendered.
Article 20(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 21(1) provides that the parties may consult in
connection with the processing of individual cases and in
furtherance of efficient implementation of the Treaty. Article
21(2), which is taken from Article 14 of the U.S.-EU
Extradition Agreement, provides for consultation between the
parties when the Requesting State contemplates the submission
of particularly sensitive information in support of a request
for extradition, in order to determine the extent to which the
information can be protected by the Requested State in the
event of submission.
Article 22 makes the Treaty applicable to offenses
committed both before and after the date it enters into force.
Article 23 contains final clauses addressing the Treaty's
ratification, 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 the instruments of
ratification. Article 23(3) provides that, upon entry into
force of the Treaty, the Treaty of Extradition between the
United States of America and Romania, signed at Bucharest on
July 23, 1924, as well as the Supplementary Extradition Treaty,
signed at Bucharest on November 10, 1936, shall cease to have
any effect except that they shall apply in extradition
proceedings in which extradition documents have already been
submitted to the courts of the Requested State at the time the
Treaty enters into force. In such cases, only Articles 2,
14(1), and 18 of this Treaty will apply, and Article 17 of the
Treaty, regarding the rule of specialty, will apply to persons
found extraditable under the earlier treaties. Under Article
23(4), where a request for extradition was received by the
Requested State but not submitted to its courts before the
entry into force of this Treaty, the Requesting State, after
entry into force of this treaty, may amend or supplement the
request for extradition as necessary in order for it to be
submitted to the courts of the Requested State under this
Treaty.
Under Article 23(5), 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
urging approval of this Treaty by the Senate at the earliest
possible date.