[Senate Hearing 105-730]
[From the U.S. Government Publishing Office]
S. Hrg. 105-730
EXTRADITION, MUTUAL LEGAL ASSISTANCE, AND PRISONER TRANSFER TREATIES
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HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 15, 1998
__________
Printed for the use of the Committee on Foreign Relations
Available via the World Wide Web: http://www.access.gpo.gov/congress/senate
U.S. GOVERNMENT PRINTING OFFICE
51-624 cc WASHINGTON : 1998
_______________________________________________________________________
For sale by the U.S. Government Printing Office,
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON FOREIGN RELATIONS
JESSE HELMS, North Carolina, Chairman
RICHARD G. LUGAR, Indiana JOSEPH R. BIDEN, Jr., Delaware
PAUL COVERDELL, Georgia PAUL S. SARBANES, Maryland
CHUCK HAGEL, Nebraska CHRISTOPHER J. DODD, Connecticut
GORDON H. SMITH, Oregon JOHN F. KERRY, Massachusetts
CRAIG THOMAS, Wyoming CHARLES S. ROBB, Virginia
ROD GRAMS, Minnesota RUSSELL D. FEINGOLD, Wisconsin
JOHN ASHCROFT, Missouri DIANNE FEINSTEIN, California
BILL FRIST, Tennessee PAUL D. WELLSTONE, Minnesota
SAM BROWNBACK, Kansas
James W. Nance, Staff Director
Edwin K. Hall, Minority Staff Director
(ii)
C O N T E N T S
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Page
Borek, Jamison S., Deputy Legal Adviser, Department of State..... 3
Richard, Mark M., Deputy Assistant Attorney General, Criminal
Division, Department of Justice................................ 7
Appendix
Letter from Mark M. Richard, Deputy Assistant Attorney General,
Criminal Division, Department of Justice....................... 27
Responses of the Department of State to questions asked by
Senator Helms.................................................. 29
Responses of the Department of State to questions asked by
Senator Biden.................................................. 35
(iii)
EXTRADITION, MUTUAL LEGAL ASSISTANCE, AND PRISONER TRANSFER TREATIES
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TUESDAY, SEPTEMBER 15, 1998
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 10:06 a.m. in
room SD-419, Dirksen Senate Office Building, Hon. Rod Grams
presiding.
Senator Grams. Well, good morning. I am a little late, but
I would like to get our hearing under way this morning to
consider law enforcement treaties. I want to welcome Ms. Borek
and also Mr. Richard here this morning. I look forward to your
answers to our questions and also to your statement. But before
that I just have a brief opening statement as well. So again,
thank you for being here this morning.
A record 30 law enforcement treaties are being considered
by this committee today: 13 extradition treaties, 16 mutual
legal assistance treaties, and 1 prisoner transfer treaty. All
of these treaties are designed to further law enforcement
interests and generally enjoy bipartisan support.
The United States is party to more than 100 bilateral
extradition treaties and, of the 13 extradition treaties, only
the treaty with Zimbabwe represents a new treaty relationship.
Treaties with the Caribbean countries, India, and Cyprus
replace a 1931 treaty with the United Kingdom which continued
to apply to these countries even after their independence. The
other treaties modernize older treaties to ensure that all
criminal acts punishable in both countries by 1 year in prison
are covered by the treaties.
Extradition relationships have long been a basis of
bilateral relationships and represents a recognition by the
United States of the legitimacy of a country's judicial system.
Respect for a treaty partner's judicial system is essential
since the treaties permit the transfer of individuals to
another country in order to stand trial for alleged crimes. The
treaty with Zimbabwe therefore signals a very important
advancement in the U.S. relationship with that country.
The treaties serve to create a web of relationships that
make it increasingly difficult for criminals to find a safe
haven from criminal prosecution.
While opportunities are created by the increasing
globalization, this openness can have detrimental effects as
well, most notably the easy mobility of criminals, whether by
physical travel or electronic connections via the WorldWide
Web. Extradition of criminals becomes increasingly important to
ensure that these wrongdoers are brought to justice.
Now, since September 1997 185 persons were extradited to
the United States for prosecution for crimes committed in the
United States and the United States extradited 73 individuals
to other countries for prosecution.
A number of mutual legal assistance treaties are also being
considered today, many of which are with the Eastern European
and Caribbean countries, where fighting organized crime, drug
trafficking, and money-laundering activities are high
priorities for the United States. MLAT's provide for the
sharing of information and evidence related to criminal
investigations and prosecutions.
The need to obtain the cooperation of foreign authorities
is frequently critical to effective criminal prosecution.
MLAT's enable U.S. prosecutors to obtain material and
statements from treaty partners in a form that comports with
U.S. legal standards.
Finally, today the committee is looking at a prisoner
transfer treaty between the United States and Hong Kong. That
treaty facilitates the exchange of administrative
responsibilities for final jail sentences and enables prisoners
to serve their sentences in their home countries. This is
designed to permit prisoners to be located closer to family and
friends so that they may more easily visit with them.
In the case of the Hong Kong agreement, the committee will
need to be assured that this transfer of prisoners will be
limited to Hong Kong and not the People's Republic of China.
There is no question that these are important treaties. I
believe they provide the framework for the sharing of
information and transfer of criminals worldwide. It is
essential, therefore, that in the wake of the Rome Treaty
adopted by more than 100 countries in July to create a
permanent international criminal court that the Senate clarify
the relationship of these treaties with such a court.
I am concerned that these treaties could be used to
facilitate both the transfer of suspects, witnesses and other
information to that misconceived court. At a hearing before the
International Operations Subcommittee last month, both Chairman
Helms and I made clear that the United States must isolate this
court and ensure that no assistance is given it. The approval
of these treaties must be contingent on an understanding that
no persons will be extradited to the international criminal
court and that no legal assistance will be given to the court.
Last this morning, I would like to note that Attorney
General Janet Reno is personally interested in these treaties
and this committee will continue to work with her on important
law enforcement issues as well. In fact, she is committed to
appear before this committee on October the 1st to testify
regarding the increasing law enforcement problem of
international parental kidnapping.
Today, however, the committee will hear first from Jamison
S. Borek--am I pronouncing that correctly--the Deputy Legal
Adviser for the Department of State, followed by Mark M.
Richard, the Deputy Assistant Attorney General for criminal
matters. I want to welcome you both here this morning and you
may begin your testimony. Ms. Borek, we will begin with you.
Thank you again.
STATEMENT OF JAMISON S. BOREK, DEPUTY LEGAL ADVISER, DEPARTMENT
OF STATE
Ms. Borek. Thank you, Mr. Chairman, I am pleased to appear
before you today and I thank you and the other members of the
committee and staff for holding this hearing to consider a
number of very important international law enforcement
cooperation treaties. As you have noted, these treaties fall
into three categories.
We have a number of extradition treaties, with Antigua and
Barbuda, Argentina, Austria, Barbados, Cyprus, Dominica,
France, Grenada, India, Luxembourg, Mexico, Poland, Spain, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines,
Trinidad and Tobago, and Zimbabwe. With the exception of
Zimbabwe, as you have noted, these treaties seek to bring up to
date and make much more effective and usable a number of
treaties that date back even to the late 1800's in some cases.
We have in addition mutual legal assistance treaties with
Antigua and Barbuda, Australia, Barbados, Brazil, Czech
Republic, Dominica, Estonia, Grenada, Hong Kong, Israel,
Latvia, Lithuania, Luxembourg, Poland, St. Kitts and Nevis, St.
Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and
Venezuela.
Unlike the extradition treaties, which go back almost 100
years, the mutual legal assistance treaty program is relatively
new and has been started only in the last decades. We have
found this a very important component, with the growth of
international organized crime and transnational crime, to
assist in the investigation of crimes and ultimately in their
prosecution.
In addition, we have a prisoner transfer treaty with Hong
Kong, which is necessary given the reversion of Hong Kong to
Chinese sovereignty and the lack of continued applicability of
the multilateral convention, the Council of Europe Convention
on the Transfer of Sentenced Persons.
Mr. Chairman, you have covered many of the essential points
in your opening statement. The negotiation of these new
treaties is important given the increasing threat of
transnational crime and international organized crime,
particularly in priority areas such as terrorism, organized
crimes, arms, and drug trafficking. We have been seeking to
improve these treaty tools in countries where there are
particular threats, not necessarily because of domestic crime
issues, but sometimes because they are transit points or
important money-laundering centers. We are also attempting to
extend agreements to what were formerly Eastern European
countries with whom we did not have law enforcement relations,
but in light of the new realities in these countries it is an
appropriate time to do so.
We are also seeking to extend and strengthen our
relationships in the Asian areas as this is a new focus of
activity, and also in other selected areas where there are
particular problems.
With your permission, Mr. Chairman, I will not read my
entire statement, but ask that it be accepted and printed in
the record.
Senator Grams. Without objection.
Ms. Borek. Thank you.
[The prepared statement of Ms. Borek follows:]
Prepared Statement of Jamison S. Borek
Mr. Chairman and members of the Committee: I am pleased to appear
before you today to testify in support of 38 treaties for international
law enforcement cooperation. The treaties, which have been transmitted
to the Senate for advice and consent to ratification, fall into three
categories:
extradition treaties with Antigua and Barbuda, Argentina,
Austria, Barbados, Cyprus, Dominica, France, Grenada, India,
Luxembourg, Mexico, Poland, Spain, St. Kitts and Nevis, St.
Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and
Zimbabwe.
mutual legal assistance treaties--or ``MLATs''--with Antigua
and Barbuda, Australia, Barbados, Brazil, Czech Republic,
Dominica, Estonia Grenada, Hong Kong, Israel, Latvia,
Lithuania, Luxembourg, Poland, St. Kitts and Nevis, St. Lucia,
St. Vincent and the Grenadines, Trinidad and Tobago, and
Venezuela.
a prisoner transfer treaty with Hong Kong.
The Department of State greatly appreciates this opportunity to
move toward ratification of these important treaties. The growth in
transborder criminal activity, especially violent crime, terrorism,
drug trafficking, and the laundering of proceeds of organized crime,
has confirmed the need for increased international law enforcement
cooperation. Extradition treaties and MLATs are essential tools in that
effort.
The negotiation of new extradition and mutual legal assistance
treaties are one important part of the President's comprehensive
International Crime Control Strategy, which was announced last May.
That Strategy recognizes the increasing threat of international crimes
such as terrorism, organized crime and arms and drug trafficking. One
important measure to better address this threat is to enhance the
ability of U.S. Law enforcement officials to cooperate effectively with
their overseas counterparts in investigating and prosecuting
international crime cases. One of the Strategy's eight goals is to deny
safe haven to international criminals--and the negotiation of new
extradition and mutual legal assistance treaties is one of the
objectives necessary to reaching that goal. Replacing outdated
extradition treaties with modern ones and negotiating extradition
treaties with new treaty partners is necessary to create a seamless web
for the prompt location, arrest and extradition of international
fugitives. The Strategy also underscores that mutual legal assistance
treaties are vitally needed to provide rapid, mutual access to
witnesses, records and other evidence in a form admissible in criminal
prosecutions. The instruments before you today will be important tools
in achieving this goal.
Extradition Treaties
I will first address the extradition treaties currently before the
Committee. As you know, under U.S. law, fugitives can only be
extradited from the United States pursuant to authorization granted by
statute or treaty. The treaties pending before the Committee will
create new or updated treaty relationships with many important law
enforcement partners.
There are sixteen comprehensive extradition treaties before the
Committee. Fifteen of these treaties update outdated extradition treaty
relationships in order to ensure their effectiveness. These are part of
the Administration's ongoing program to review and revise older treaty
relationships, many of which are extremely outdated and do not include
many modern crimes or modern procedures.
Ten of these treaties will replace existing treaty
relationships between the United States and former British
territories that are now based on the 1931 or 1972 U.S.-UK
extradition treaties--Antigua and Barbuda, Barbados, Cyprus,
Dominica, Grenada, India, St. Kitts and Nevis, St. Lucia, St.
Vincent and the Grenadines, and Trinidad and Tobago.
Another five of the extradition treaties before the
Committee are with countries with which we have other older
relationships that needed to be updated--these are Austria
(which is now governed by a 1930 treaty as supplemented in
1934), Luxembourg (now governed by 1883 treaty with 1935
Protocol), France (now governed by 1909 treaty as supplemented
in 1970 and 1971), Poland (now governed by 1927 treaty with
1935 Protocol) and Argentina (now governed by 1972 treaty).
With the passage of time, these treaties are not as effective
as the modern treaties before the Committee today in ensuring
that all fugitives may be brought to justice.
Finally, the sixteenth extradition treaty before the
Committee is with Zimbabwe. With this treaty we will for the
first time create a bilateral extradition relationship with
that country, which became independent in 1980. The U.S.-
Zimbabwe treaty will be the first U.S. law enforcement
cooperation treaty with that country and over time may be a
model for additional law enforcement relationships in the
region.
All of the sixteen comprehensive extradition treaties contain
several noteworthy provisions that will substantially serve our law
enforcement objectives.
First, these treaties define extraditable offenses to include
conduct that is punishable by imprisonment or deprivation of liberty
for a period of one year or more in both states. This is the so-called
``dual criminality'' approach. Treaties negotiated before the 1970s
typically provided for extradition only for offenses appearing on a
list contained in the instrument. As time passed, these lists grew
increasingly out of date. The dual criminality approach obviates the
need to renegotiate treaties to cover new offenses in instances in
which both states pass laws to address new types of criminal activity.
Second, these treaties will permit extraditions whether the
extraditable offense is committed before or after their entry into
force. This provision is particularly useful and important, since it
will ensure that persons who have already committed crimes can be
extradited under the new treaties from each of the new treaty partners
after the treaty enters into force.
Third, these treaties all contain a provision that permits the
temporary surrender of a fugitive to the Requesting State when that
person is facing prosecution for, or serving a sentence on, charges
within the Requested State. This provision can be important to the
Requesting State and in some cases the fugitive for instance, so that:
1) charges pending against the person can be resolved earlier while the
evidence is fresh; or 2) where the person sought is part of a criminal
enterprise, he can be made available for assistance in the
investigation and prosecution of other participants in the enterprise.
These treaties also address two of the most difficult issues in our
extradition treaty negotiations--extradition of nationals of the
Requested State and extraditions where the fugitives may be subject to
the death penalty in the Requesting State.
As a matter of longstanding policy, the U.S. Government extradites
United States nationals. Eleven of the sixteen comprehensive treaties
before the Committee contemplate the unrestricted extradition of
nationals. Specifically, the proposed extradition treaties with all ten
of the former British dependencies noted above except Cyprus, plus the
treaties with Argentina and Zimbabwe, provide that nationality is not a
basis for denying extradition. Many countries, however, are currently
prohibited by their constitutions or domestic law from extraditing
their nationals. The U.S. Government has made it a high priority to
convince states to change their constitutions and laws and agree to
extradite their nationals. This is, however, a very sensitive and deep-
seated issue and we have not succeeded in obtaining unqualified
approval in all circumstances.
The treaty with Argentina is in this respect particularly
significant. Paragraph 3 of the Argentina treaty provides that ``[t]he
extradition and surrender of the person sought shall not be refused on
the ground that such person is a national of the Requested Party.''
This provision is especially useful since a relatively large percentage
of fugitives wanted by the United States in that country are likely to
be of Argentine nationality. This treaty, and our treaty with Bolivia
which also permits extradition of nationals, to which the Senate gave
advice and consent in 1996, represent a watershed in our efforts to
convince civil law countries in the western hemisphere to oblige
themselves to extradite their nationals to the United States. We are
already using these treaties as precedents in our efforts with other
nations in Latin America and elsewhere. In practical terms, these
treaties should help the United States to bring to justice narcotics
traffickers, regardless of nationality, who reside or may be found in
these countries.
The treaties with Austria, Cyprus, France, Luxembourg and Poland do
not require a Requested State to extradite its nationals. In each of
these treaties, however, should a Requested State refuse extradition on
the basis of nationality, it is obliged upon request of the Requesting
State to submit the case to its competent authorities for prosecution.
The U.S. delegations pursued mandatory extradition of nationals
strenuously with these countries, but the domestic laws of these
countries currently prohibit the extradition of nationals and those
governments were therefore unable to commit to the extradition of
nationals. We are continuing our efforts to convince these and all
other countries to remove Constitutional and other legal restrictions
on the extradition of nationals.
A second issue that often arises in modern extradition treaties
involves extraditions in cases in which the fugitive may be subject to
the death penalty in the Requesting State. A number of countries that
have prohibited capital punishment domestically, also, as a matter of
law or policy, prohibit the extradition of persons to face the death
penalty. To deal with this situation, or to address the possibility
that in some cases that the United States might want to seek such
assurances, a number of recent U.S. extradition treaties have contained
provisions under which a Requested State may request an assurance from
the Requesting State that the fugitive will not face the death penalty.
Provisions of this sort appear in the extradition treaties with
Austria, Argentina, Cyprus, France, India, Luxembourg and Poland. In
our negotiations with Antigua and Barbuda, Barbados, Dominica, Grenada,
St. Kitts and Nevis. St. Lucia, and St. Vincent and the Grenadines, and
Trinidad and Tobago, it was agreed that the possibility of the death
penalty would not serve as a basis for the denial of extradition.
In addition to these sixteen comprehensive treaties, that regulate
all essential elements of bilateral extradition relations, there are
two instruments with Spain and Mexico that supplement existing treaties
with those countries.
The first of these is entitled the Third Supplementary Extradition
Treaty with Spain. This Supplemental treaty will facilitate the
extradition of fugitives by eliminating two impediments in U.S.-Spain
extradition practice. It will remove the statute of limitations of the
Requested State as a basis for denying extradition making only the
statute of limitations in the Requesting State relevant. It will also
provide that amnesties, which are occasionally promulgated in Spain but
typically not in the United States, will not bar extradition of
fugitives sought by one party for offenses that are the subject of an
amnesty in the other Party.
The second supplemental treaty is the Protocol to the U.S.-Mexico
Extradition treaty, which adds to the 1978 U.S.-Mexico extradition
treaty a provision on the temporary transfer of persons for trial in
the Requesting State of persons who have been convicted and sentenced
in the Requested State. This provision is similar to those the United
States has included in many of its modern extradition treaties and will
facilitate the transfer of prisoners from one treaty partner to the
other for trial while evidence and witnesses are still available and
fresh.
Mutual Legal Assistance Treaties
I will now comment briefly on the mutual legal assistance treaties
with Antigua and Barbuda, Australia Barbados, Brazil, Czech Republic,
Dominica, Estonia, Grenada, Hong Kong, Israel, Latvia Lithuania,
Luxembourg, Poland, St. Kitts and Nevis, St. Lucia, St. Vincent and the
Grenadines, Trinidad and Tobago, and Venezuela. The Department of
Justice will speak on these treaties at greater length.
These mutual legal assistance treaties before the Committee are
similar to twenty other MLATs that have entered into force with
countries throughout the world. The U.S. Government's's mutual legal
assistance treaty program is relatively new when compared with
extradition but have fast become a central aspect of our international
law cooperation program. As a general matter, MLATs obligate the
Requested State to provide the Requesting State with certain kinds of
evidence, such as documents, records, and testimony, provided that
treaty requirements are met. Ratification of the MLATs under
consideration today will enhance our ability to investigate and
prosecute a variety of crimes, including violent crime, drug
trafficking and terrorism offenses.
All of the MLATs require the Contracting Parties to assist each
other in proceedings related to the forfeiture of the proceeds and
instrumentalities of criminal activity, to the extent such assistance
is permitted by their respective laws. Such assistance may prove
invaluable insofar as it is used to deprive international drug
traffickers and members of organized crime of the benefits of their
criminal activity. The MLATs also provide that forfeited and seized
assets or the proceeds of their sale may be transferred to the other
Party.
As is the case with all MLATs currently in force, there are
exceptions to the obligation to provide assistance. Although the
language varies to a certain extent among the treaties, all of the
pending MLAT provide that requests for assistance may be denied if
their execution would prejudice the essential interests of the
Requested State. Assistance may be postponed if the Requested State
determines that execution of a request would interfere with an ongoing
criminal investigation or proceeding. For all of the treaties, the
provisions relating to procedures to be followed in making requests and
the type of assistance to be provided track closely provisions
contained in the other MLATs currently in force.
A key provision of all MLATs is the creation of ``Central
Authorities'' to coordinate requests for assistance. For the United
States, the Attorney General or her designee is the Central Authority.
As the Department of Justice implements these treaties, I will defer to
Deputy Assistant Attorney General Richard in describing the other
specific provisions of these instruments and issues related to their
implementation.
Hong Kong Prisoner Transfer Treaty
Also before the Committee is the U.S.-Hong Kong Prisoner Transfer
Agreement. The purpose of this instrument is to facilitate the transfer
of persons sentenced in the United States and in Hong Kong to their
home territory to serve their sentences, as was possible when Hong Kong
was part of the United Kingdom and transfers were possible under the
multilateral Council of Europe Convention on the Transfer of Sentenced
Persons, to which the United States and the United Kingdom are parties.
The Agreement achieves this purpose by establishing procedures that can
be initiated by sentenced persons who prefer to serve their sentences
in their home territory. The means employed to achieve this purpose are
similar to those embodied in existing bilateral prisoner transfer
treaties in force between the United States and eight other countries,
and in the Council of Europe Convention.
I will be happy to answer any questions the Committee may have.
Senator Grams. Thank you very much. Mr. Richard.
STATEMENT OF MARK M. RICHARD, DEPUTY ASSISTANT ATTORNEY
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE
Mr. Richard. Thank you, Mr. Chairman. With your permission,
I would like to submit my full statement for the record and
merely summarize it at this time.
Senator Grams. Without objection.
Mr. Richard. Our negotiation of these extradition treaties
that are before the committee is a major aspect of our efforts
to deny sanctuary or safe haven to international criminals, as
you have noted in your opening statement. But obtaining
physical custody of the fugitives through extradition processes
means little in most instances unless we have the evidence to
convict them at trial.
For that purpose we must turn to processes that afford us
the opportunity to acquire such evidence and to acquire it in a
usable fashion. The device, the means to accomplish that
objective, is in fact the mutual legal assistance treaties
before the committee. They provide for assistance at all stages
of the U.S. criminal investigation and prosecution, including
grand jury proceedings. They also enable us, significantly, to
obtain the assistance in a speedier process than otherwise
available through non-treaty mechanisms currently on the books.
As Ms. Borek already indicated, the extradition treaties
attempt to modernize our extradition process. The extradition
treaties by and large attempt to incorporate the most modern
approaches and efficient approaches to international
extradition. Each of the treaties use the dual criminality
approach, which permits extradition for any crime punishable in
both countries by more than 1 year imprisonment. This enables
us to ensure that, with the passage of new criminal statutes in
both countries, that we need not come back to have protocols to
the treaty in order to have those crimes covered by the
extradition treaty.
The new treaties also incorporate a variety of procedural
improvements. For example, they clarify the provisional arrest
provisions whereby, once we identify the location of a
fugitive, we can immediately seek to detain him or her while
the documents are being prepared.
The treaties also allow a state to temporarily transfer a
person in custody while he is serving a sentence in the state
in order to expedite prosecution in the requesting country. The
treaties also allow the person sought to waive extradition and
expedite return to the requesting state, thereby substantially
expediting extradition in uncontested cases.
Moreover, the extradition treaties reflect our law
enforcement priorities and relations. We have tried to
emphasize in the negotiating process those treaties that will
in fact be of paramount practical value to U.S. law
enforcement. By U.S. law enforcement, I am not limiting it to
just Federal law enforcement. These treaties apply to state and
local authorities, enabling them to acquire prisoners and
fugitives that they are interested in.
Let me turn briefly to the mutual legal assistance
treaties. These treaties join 20 other MLAT's that have been
ratified since 1977, beginning with the first with Switzerland.
Our efforts to investigate and prosecute serious crimes must
take into account the fact that critical evidence in major
cases is often found abroad. Acquiring this evidence and
acquiring it in a fashion that is usable in our court is not
always an easy process.
I would want to emphasize, though, that these treaties we
recognize are not panaceas. They can be extremely useful tools,
but they will not by themselves resolve the problem of
international crime. Moreover, an MLAT's effectiveness in our
experience ultimately depends on the good faith and commitment
of the parties, as well as on the specific language of the
instrument.
Generally, these MLAT's contain the same characteristic
provisions. They all create a central authority. In this case
that central authority has been designated as the Attorney
General and that function is in fact delegated to the Criminal
Division and our Office of International Affairs. They also
provide as broad a scope of coverage as possible, in order to
enable us to obtain information and evidence in connection with
the broadest scope of offenses. They also provide mechanisms
for us to acquire information and acquire it in a fashion so as
to have it usable in our courts, and this is particularly
relevant in terms of affording defense an opportunity for
confrontation in terms of taking depositions.
Significantly, the MLAT process we have found is far more
efficient and effective, and it provides for prosecutors and
investigators a level of predictability that we never had
before. The alternative basis, depending on the principles of
comity, never enables us with great confidence to predict
whether at the time of trial we will have the evidence in a
fashion that we need. Here under the MLAT we now have a
heightened level of predictability and thus confidence when we
bring a case that we will be able to take it to trial at the
appropriate time.
Turning to the Hong Kong Prisoner Transfer Treaty just
briefly, this treaty will provide a basis for us to renew the
prisoner transfer relationship which we shared with Hong Kong
from 1988 until 1997. Its substantive provisions are quite
similar to those in our existing prisoner transfer treaties
and, like those treaties, the U.S.-Hong Kong agreement permits
a transfer only when both parties and the prisoner consent.
This is critical because it does require the consent of the
prisoner.
Finally, based on our experience with Hong Kong under the
Council of Europe Treaty, we expect a relatively small number
of requests for transfer under this agreement.
In conclusion, Mr. Chairman, we appreciate the committee's
support in our efforts to address the problem of combating
international crime and the Attorney General has asked me to
express her appreciation to you for holding these hearings.
Thank you.
[The prepared statement of Mr. Richard follows:]
Prepared Statement of Mark M. Richard
Mr. Chairman and members of the Committee, I am pleased to appear
before you today to present the views of the Department of Justice on
38 law enforcement treaties that have been referred to the Committee.
Eighteen of the 38 treaties are extradition treaties, with Antigua-
Barbuda, Argentina, Austria, Barbados, Cyprus, Dominica, France,
Grenada, India, Luxembourg, Mexico Extradition Protocol, Poland, Spain
Extradition Protocol, St. Kitts-Nevis, St. Lucia, St. Vincent-the
Grenadines, Trinidad-Tobago, and Zimbabwe. Another 19 treaties are
mutual legal assistance treaties (or ``MLATs'') with Antigua-Barbuda,
Australia, Barbados, Brazil, Czech Republic, Dominica, Estonia,
Grenada, Hong Kong, Israel, Latvia, Lithuania, Luxembourg, Poland, St.
Kitts-Nevis, St. Lucia, St. Vincent-the Grenadines, Trinidad-Tobago,
and Venezuela. Finally, also included is the U.S.-Hong Kong Prisoner
Transfer Treaty, which enable us to renew the prisoner transfer
relationship which we shared with Hong Kong, until its July 1997
reversion to the People's Republic of China.
The Department of Justice participated in the negotiation of these
treaties, and today joins the Department of State in urging the
Committee to report favorably to the Senate and recommend its advice
and consent to the ratification. Since Deputy Legal Advisor Borek will
discuss the extradition treaties in her testimony, and the Departments
of Justice and State have prepared a detailed technical analysis of
each of the treaties, I would like to speak today in more general terms
about why we view these treaties as important instruments in
investigating and prosecuting serious offenses both at the federal and
state levels.
Our negotiation of these 38 treaties is a major aspect of our
efforts to deny sanctuary, or ``safe haven'' to international
criminals, no matter where they are hiding around the globe. Criminals
who violate U.S. law must not be allowed to remain beyond the reach of
U.S. and other law enforcement authorities. International extradition
treaties remain the most effective mechanism to obtain the return of
international fugitives.
However, obtaining physical custody of fugitives means little
without the evidence needed to convict them at trial. Mutual legal
assistance treaties--MLATs for short--provide for assistance at all
stages of U.S. criminal investigations and prosecutions, including
grand jury proceedings. They also enable much speedier assistance than
is otherwise available through the cumbersome non-treaty mechanisms
used for this purpose.
The Extradition Treaties
The eighteen extradition treaties represent the continuing effort
by the Department of Justice and the Department of State to modernize
our extradition relations. Fifteen of these treaties replace
extradition treaties now in force that have become outdated and
obsolete. One treaty, with Zimbabwe, establishes an extradition
relationship for the first time. Two of the treaties before the
Committee, with Mexico and Spain, supplement treaties that are
currently in force, leaving the basic structure and terms of the treaty
intact.
Each of the 18 treaties before the Committee reflects our effort to
conclude agreements that incorporate the most modern and efficient
approaches to international extradition. In the past, extradition
treaties contained a list of the crimes for which extradition may be
granted; each of the new treaties eschew such lists for a ``dual
criminality'' approach, which permits extradition for any crime
punishable in both countries by more than one year's imprisonment. A
dual criminality provision makes it unnecessary to renegotiate the
treaty or supplement it when new crimes are enacted--an especially
attractive feature in an age in which new forms of criminal behavior
constantly lead to new legislation. This is especially important since
the U.S. has traditionally been at the cutting edge of criminalizing
newly emerging criminal activities such as money laundering, computer-
related abuses, environmental crimes, to name just a few.
The new treaties also incorporate a variety of procedural
improvements. For example, all of the extradition treaties clarify the
procedures for ``provisional arrest,'' the process by which a fugitive
in flight can be detained while the documents in support of extradition
are prepared. The treaties all allow each state to temporarily transfer
a person while he is still serving a sentence in that State in order to
expedite prosecution. The treaties also allow the person sought to
waive extradition and expedite return to the requested state, thereby
substantially expediting extradition in uncontested cases. Procedural
improvements of this kind allow the legal framework for extradition to
operate more efficiently.
The treaties also will be important precedent for us in persuading
other countries to extradite their nationals to us for trial, and
assuring us that countries who have extradited nationals in the past
continue to do so. For example, the new treaty with Argentina requires
the extradition of Argentine nationals, and it will be an important
precedent that we want to use to urge other countries in Latin America
and elsewhere to follow. Similarly, the new treaties with Antigua and
Barbuda, Barbados, Dominica, Grenada, St. Christopher-Nevis, St. Lucia,
St. Vincent-the Grenadines, Trinidad, and India all explicitly require
extradition of nationals, and thereby ``lock in'' our treaty partner to
surrendering nationals in a way not accomplished by the treaties now in
force with these nations. In all, eleven of the treaties before the
Committee explicitly state that extradition may not be denied on the
basis of the fugitive's nationality. The other new treaties--with the
exception of the French treaty--give each state the discretion to grant
or deny extradition of its nationals. The U.S. delegation worked hard
to insure that this discretionary approach was maintained so that
extradition of nationals would remain an option, as legal and policy
barriers are removed.
The extradition treaty with Argentina highlights a development in
the field of international extradition. There is almost universal
agreement among nations on the value of international extradition, but
there is less agreement on whether nations should extradite their own
nationals to other nations. Most countries with a common law tradition,
like the United States, do extradite their citizens, on request, to the
country where the crime was committed, provided there is a treaty in
force and there is evidence to support the charges. Many countries with
a civil law tradition, however, have historically refused or been
reluctant to extradite their nationals. These nations typically deny
extradition and offer instead to prosecute the national within their
own legal system for crimes committed abroad, a process referred to as
``domestic prosecution.''
Our experience has been that such ``domestic prosecutions'' are
appealing in theory but woefully ineffective and inefficient in
practice. Evidence collected in one country often cannot be transferred
from the country where the offense occurred to the country of the
offender's nationality because rules of evidence differ, or other
technical, legal, or procedural differences interfere. Witnesses and
victims themselves are often unable or unwilling to travel long
distances to participate in judicial proceedings whose language and
procedures they do not understand. Moreover, as the Attorney General
has often stated, it is more appropriate to have the defendant tried
where the victims are located and where the major harm was committed.
As a matter of fundamental law enforcement policy, the
Administration believes that persons should be brought before the
courts in those countries which have suffered the major criminal harm
and which are best positioned to ensure fair and effective prosecution.
The Administration further believes that criminals should never escape
justice based simply on their citizenship or nationality.
We are especially pleased to see the growing number of countries
like Argentina that are willing to re-examine past policies prohibiting
or discouraging extradition of nationals. For instance, Italy, faced
with the serious threat to society posed by international organized
crime organizations, was one of the first countries to reverse its
position, and began in the 1980s to extradite its citizens to the U.S.
Bolivia and Uruguay have also broken with civil law tradition and
dismantled barriers to extradition of nationals, and other states such
as Poland, are also re-evaluating their laws. For these reasons, the
treaty with Argentina is an especially timely development, and will be
an important precedent that we will encourage other Latin American
nations to follow.
The extradition treaties reflect our law enforcement relations and
priorities with our treaty partners. We have tried to emphasize
negotiations of the extradition treaties that will be of paramount
practical value to U.S. law enforcement. For example:
The extradition treaties with Barbados, Trinidad, and the
six nations that are members of the Organization of Eastern
Caribbean States (Antigua-Barbuda, Dominica, Grenada, St.
Kitts-Nevis, St. Lucia, and St. Vincent-the Grenadines) reflect
the importance of this strategic region to U.S. law
enforcement, which has found that Latin American drug rings,
reacting to heightened enforcement activity on the U.S.-Mexican
border and the western Caribbean, have increased their use of
the eastern Caribbean for smuggling drugs into the U.S. and
Western Europe.
The extradition treaty with Poland, like the MLAT with that
state, was intended to enhance our ability to respond to
growing crime problem in Eastern Europe, which spills over to
the U.S. Similarly, the extradition treaty with Austria is
important because Austria occupies an especially strategic
location between Eastern and Central Europe.
The extradition treaty with France will replace the current
1902 treaty. We handle a large number of extradition requests
involving France, and the volume grows larger each year, so a
new modern treaty is needed to enable us to process these
requests more effectively and efficiently. The new treaty and
the Agreed Minute accompanying the treaty will be an important
step toward reciprocity by the French.
The Extradition Protocol with Mexico is designed to create a
new option in U.S.-Mexican extradition relations. All of our
other recent extradition treaties permit an offender who is
serving a long sentence in the Requested State to be
temporarily extradited to the Requesting State for the limited
purpose of trial there, while the evidence is available and the
witnesses' memories are fresh, then be returned to the
Requested State to complete serving the original sentence. The
current treaty with Mexico, signed May 4, 1978, does not
contain such a provision, a fact that has occasionally hampered
effective law enforcement. One example of this problem is a
recent case involving a Cuban national, Luis Martinez who was
wanted in New York to face multiple murder charges, but could
not be extradited immediately because he was already serving a
seven year sentence in Mexico for rape. New York authorities
felt that if Martinez' extradition were postponed for seven
years, however, New York would not be able to prosecute
Martinez at all, because of the imminent loss of the only
eyewitness to the crime. Fortunately, the Government of Mexico
agreed to make use of its prison parole system to expedite
Martinez's eligibility for release and worked closely with the
United States to arrange an expedited surrender of Martinez to
New York authorities. While a miscarriage of justice was
averted in the Martinez case, both the U.S. and Mexican
Governments realized that the extradition treaty should be
updated to provide a routine procedure in such matters. The
Protocol before the Committee is the result of these efforts.
The Mutual Legal Assistance Treaties
The MLATs before this Committee will join twenty other MLATs that
have been ratified since 1977, when our first MLAT, with Switzerland,
entered into force. We now have MLATs in force with Switzerland,
Turkey, Netherlands Italy, Canada, the Bahamas, Mexico, the U.K.-Cayman
Islands, Argentina, Thailand, Morocco, Spain, Uruguay, Jamaica Panama,
the Philippines, the United Kingdom, Hungary, South Korea, and Austria
(which entered into force on August 1, 1998). Thus, the new MLATS
before the Committee, when ratified, will double the number of MLATs in
place, and enable us to greatly increase the number of successful
requests to foreign countries for assistance.
Our long-term goal is to have as many MLATs as possible in force
with countries that constitute U.S. law enforcement priorities, and for
good reason. As the Committee knows all too well, recent years have
witnessed the increasing ``internationalization'' of crime, especially
in the areas of drug trafficking, money laundering, terrorism,
organized crime, and large scale fraud. Members of drug cartels,
organized crime, and terrorist networks do not respect national
boundaries; in fact, they intentionally exploit national borders to
impede law enforcement efforts. Therefore, our efforts to investigate
and prosecute serious crimes must take into account that critical
evidence in major criminal cases is often found abroad. Obtaining such
evidence--especially in a form that will be admissible in our courts--
is not always an easy matter. MLATs provide a more reliable and
efficient means of obtaining such evidence, and thus further our
investigative and prosecutive efforts. It is for this reason that
negotiating and implementing MLATs have become an important part of
international law enforcement efforts.
At the same time, it is important to recognize that these treaties
are not panaceas. Although they can be an extremely useful tools they
will not resolve the problem of international crime alone. Moreover, an
MLAT's effectiveness ultimately depends on the good faith and
commitment of the parties as well as on the specific language of the
instrument. It is important that we have a frank and productive working
relationship. Indeed, we have found this process of consultation to be
so critically important to the effectiveness of the treaties that
specific consultation provisions have been included in each MLAT.
While each of the MLATs now before the Committee shares certain
characteristics, the specific provisions of each treaty vary. In the
MLATs, as in the extradition treaties, some of the variances are minor
or semantic; others are substantive. The technical analyses highlight
and explain these variances among the treaties. The variances are the
inevitable result of bilateral negotiations over a period of years with
different countries, each of which has a different legal system and
domestic interests, and with each of which the United States' law
enforcement relations and priorities are different.
The MLATS before the Committee do reflect our law enforcement
relations and priorities with our treaty partners.
For example, the MLAT with Israel reflects the long history of
extensive and productive law enforcement cooperation than with Israel.
We expect that this MLAT will enhance a relationship already
distinguished by a common legal tradition and a history of successful
collaboration on a wide range of important criminal matters ranging
from terrorism to major white collar crime (e.g., the Eddie Antar fraud
case), international drug trafficking, and organized crime. The number
of U.S. requests to Israel for mutual legal assistance has grown
sharply in recent years, and prompt ratification of the MLAT is
essential to us in addressing the increasing workload in an efficient,
effective manner.
The MLATs with Estonia, Latvia, Lithuania, Poland, and the Czech
Republic reflect the strategic importance of these nations as gateways
to Eastern Europe, where the expansion of Russian organized crime is a
growing problem for these nations and the U.S.
The MLAT with Hong Kong is part of a package of agreements designed
to maintain important law enforcement cooperation between the U.S. and
this former United Kingdom colony; an extradition treaty with Hong Kong
was approved by the Senate last year. The MLAT with Hong Kong will join
MLATs now in force in the region with South Korea, the Philippines, and
Thailand, and reflects our recognition that more effective law
enforcement tools are needed with these key allies, and in the Far East
generally, to combat drug trafficking, alien smuggling, money
laundering, financial fraud, terrorism and other offenses.
Similarly, the MLAT with Australia provides a streamlined procedure
for enhanced cooperation with an important law enforcement partner on
the Pacific Rim.
The MLATs with Barbados, Trinidad, and the six nations that are
members of the Organization of Eastern Caribbean States (Antigua-
Barbuda, Dominica, Grenada, St. Kitts-Nevis, St. Lucia, and St.
Vincent-the Grenadines), complement the new extradition treaties with
these countries that I discussed, and reflect the importance of this
strategic region to U.S. law enforcement.
For the benefit of the members of the Committee, I would now like
to briefly explain what an MLAT is and describe its principle
advantages.
Mutual legal assistance treaties are intended to enable law
enforcement to obtain evidence and information abroad in a form
admissible in our courts. MLATs supplement existing arrangements on
international exchange of information between police agencies, such as
law enforcement liaison relationships, or Interpol.
MLATs perform much the same function as letters rogatory in
international cooperation. A letter rogatory is a written request from
a court in one country to a court in another country asking the
receiving court to aid the requesting court, as a matter of comity, in
obtaining evidence located beyond the requesting court's reach. Since
we have too few MLATs in force, we use letters rogatory to secure
evidence from foreign countries where no MLAT or executive agreement on
cooperation is in force. The MLAT provisions build on the authority
given to us by Congress in 18 U.S.C. section 1782 to assist foreign
countries in the gathering of evidence in the U.S.
A comparison of the way in which letters rogatory requests are made
with the MLAT process illustrates the law enforcement benefits of the
treaties before the Committee. In the case of letters rogatory, a
prosecutor, such as an Assistant United States Attorney, must apply to
the court in the U.S. for the issuance of letters rogatory. Once the
letter rogatory is signed by the court, it is transmitted through
diplomatic channels to the foreign country, traveling to the Department
of Justice in Washington, to the State Department, to the appropriate
U.S. Embassy abroad, to the Ministry of Foreign Affairs of the foreign
country, then to its Ministry of Justice, and finally to the foreign
court. Once the foreign court receives the letter rogatory, that court
will execute it, in accordance with the foreign country's rules of
evidence and procedure. The evidence obtained through the process is
transmitted back to United States through the same torturous route used
to present the request.
The MLAT request process is much more efficient for law enforcement
purposes. Each of the MLATs establishes a Central Authority for the
processing of requests, and the Attorney General is the Central
Authority for the United States. By regulation, the Attorney General
has delegated her duties to the Criminal Division's Office of
International Affairs. The prosecutor seeking evidence under an MLAT
works directly with the Office of International Affairs in preparing
the request, and the request is signed by the Director of that office.
The signed MLAT request is sent directly from the U.S. Central
Authority to the Central Authority of the MLAT partner, which will
either execute the request immediately, or refer it to the appropriate
court or law enforcement agency for execution. Once the requested
evidence is obtained, it is returned to the U.S. by the same route.
The more streamlined handling of requests is but one reason why
MLATs are superior to letters rogatory in obtaining evidence abroad.
There are several other reasons.
First, an MLAT obligates each country, consistent with the terms of
the treaty, to provide evidence or other assistance. Letters rogatory,
on the other hand, are executed solely as a matter of comity, and often
completely at the discretion of the requested country's court. Thus,
predictability of the response is of critical importance in planning
for an upcoming prosecution.
Second, an MLAT, either by itself or together with implementing
legislation, can provide a means to overcome the bank secrecy and
business confidentiality laws that so often frustrate effective law
enforcement. This is especially helpful in the investigation of
financial fraud, money laundering, and drug trafficking. Too often,
letters rogatory are of limited utility to us because the foreign
country's laws on letters rogatory do not permit piercing bank secrecy.
For example, the MLAT with the Cayman Islands has been especially
valuable to law enforcement in part because that MLAT coupled with the
Cayman Islands' implementing legislation for it, clearly provides the
terms upon which bank and business confidentiality must give way to
legitimate law enforcement needs.
Third, an MLAT provides an opportunity to devise procedures that
permit us to obtain evidence in a form that will be admissible in our
courts The rules of evidence used in our courts may be unheard of in
foreign countries, especially countries that have a civil law rather
than common law legal system. MLAT negotiations permit the
establishment of a procedural framework for ensuring that the evidence
produced for us comport with our evidentiary requirements, such as the
use of sworn certificates to authenticate bank records in accordance
with Title 18, United States Code, Section 3505, or the examining and
cross-examining of witnesses in depositions abroad.
The Hong Kong Prisoner Transfer Treaty
The last of the treaties before the Committee is the U.S.-Hong Kong
Prisoner Transfer Treaty. This treaty will provide a basis for us to
renew the prisoner transfer relationship which we shared with Hong Kong
from 1988 until July 1997 under the Council of Europe Convention on the
Transfer of Sentenced Persons. Like our other eight bilateral treaties
and the multilateral Council of Europe treaty, this agreement with Hong
Kong is designed to permit the repatriation of persons convicted abroad
to serve out their sentences at home Its substantive provision are
quite similar to those of our existing prisoner transfer treaties, and
like those treaties, the U.S.-Hong Kong agreement permits a transfer
only when both Parties and the prisoner himself consent. Based on our
experience with Hong Kong under the Council of Europe treaty, we expect
a relatively small number of requests for transfer under this
agreement.
In conclusion, Mr. Chairman, we appreciate the Committee's support
in our efforts to address the problem of combating international crime.
These treaties will enhance our ability to respond to current and
emerging critical enforcement challenges. For that reason, we urge
their speedy approval. I would be pleased to respond to the Committee's
questions, including any written questions the Committee may wish to
pose after the hearing today. \1\
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\1\ Time constraints did not allow for clearance of this statement
by the Office of Management and Budget.
Senator Grams. Thank you very much for your statements.
I have just some brief questions for each of you and maybe
I'll just address all the first questions to Ms. Borek and then
to Mr. Richard, so maybe divide them up that way.
To start out, Ms. Borek, the pending treaty with Zimbabwe
represents a new treaty relationship and the first bilateral
extradition treaty with a sub-Saharan African nation. Were
there specific events, Ms. Borek, that led to the negotiation
of a treaty with Zimbabwe rather than the other countries in
the region?
Ms. Borek. Thank you, Mr. Chairman. That is correct. In the
early nineties we had two important fugitives from the United
States who had fled to Zimbabwe. One was wanted to stand trial
for offenses in connection with the BCCI matter. At that point
it seemed prudent to negotiate an extradition treaty with
Zimbabwe. We have also had an interest in that part of Africa,
but basically the choice of Zimbabwe as a place to start
depended on the circumstances of the time.
Senator Grams. Is the State Department confident that the
judicial system of Zimbabwe is adequately or will adequately
provide due process rights to individuals and humanitarian
treatment to individuals that are imprisoned in that country?
Is there that type of confidence?
Ms. Borek. Yes, Mr. Chairman. The human rights record of
the government of Zimbabwe does compare favorably with other
countries with whom we would have extradition treaties. They
have an independent judiciary. They do have the presumption of
innocence, the right to confront and question witnesses, the
right to counsel, and other fundamental rights of due process
at trial. Thank you.
Senator Grams. Ms. Borek, perhaps the most high profile
extradition case in recent years is the request for the
extradition of Samuel Sheinbein from Israel to Maryland, and it
highlighted the issue of some countries' refusal to extradite
their own nationals. In that case Sheinbein argued that he was
a dual United States and Israeli citizen and therefore could
not be extradited to the United States to stand trial for the
murder of another Maryland teenager.
Now, in each of the extradition treaties pending before the
committee the United States commits to extradite its nationals.
However, the treaties also permit some of the proposed treaty
partners to refuse to extradite their own nationals. This
amounts to a unilateral concession on the part of the United
States.
Which of the treaties pending before the committee permit a
treaty partner to refuse extradition of their nationals?
Ms. Borek. Thank you, Mr. Chairman. This is of course an
important issue. Of the treaties, the majority of them require
extradition of nationals in all circumstances. However, it is
discretionary in the case of Poland, Austria, Cyprus,
Luxembourg, and France.
In treaties where it is discretionary, it is discretionary
for both parties. So, strictly speaking, the United States
would have a choice. However, it is a matter of longstanding
U.S. policy that we will extradite nationals for trial for
serious crimes committed overseas. This reflects two things in
particular.
Many of the civil law countries have the ability to
prosecute, at least in theory, based on nationality and
therefore they actually have the capacity to prosecute their
nationals for acts committed overseas. It is a different
question whether this is always effective. But the United
States often does not have that type of jurisdiction, and it
has been a law enforcement judgment that we do not want any
country, including the United States, to be a safe haven for
criminals and that we would practice what we preach.
I think Mr. Richard would like to add to that. I think this
is a very important program that we have been pursuing with
other countries, not to have limitations on extradition of
nationals.
Senator Grams. But in those cases there is the same option
to the United States, then, in those treaties with those
countries that refuse to extradite their nationals? We have the
same option with them is what you said?
Ms. Borek. It is discretionary. The normal provision does
not differentiate between countries. It simply says that in
that case it is discretionary. The only one which is actually
not worded in a fully reciprocal fashion is France, but in that
case it is still discretionary for the United States to
surrender a national and not mandatory.
Senator Grams. Mr. Richard.
Mr. Richard. If I may add just a few points. It is, as Ms.
Borek indicated, a judgment on our part that, especially in
light of the fact that we do not have the jurisdictional
capability of prosecuting in the United States these
individuals, that the option of allowing them to go free and
not be held accountable for acts committed abroad in our
judgment is inappropriate. We would prefer them not being in
the community, but rather to stand trial in the foreign
country, the requesting country.
Moreover, we have, though, been making a major effort. The
Attorney General personally as well as the President and others
have been striking out on this point to change, if you will,
the perception of a good portion of the world that currently
rejects the notion of extraditing their nationals. I am proud
to say that we have been making significant progress in my
judgment.
We have, as reflected, treaties with Argentina. Other prior
treaties have broken, if you will, the traditional barrier of
prohibiting extradition of nationals--civil law countries in
South America, Europe. Israel has recently introduced
legislation which, if passed, will resume the ability of Israel
to extradite its nationals.
So I think we are making progress on this front.
Senator Grams. Thank you.
What rationale do these countries give, Ms. Borek, for
refusing extradition of their nationals?
Ms. Borek. The primary rationale is their ability to
prosecute themselves based on nationality. The difficulty in
many cases that they point to is that there could be
constitutional limitations, so that in some cases even if they
wanted to change it it would be very difficult. Nonetheless,
there are countries where it is a matter of legislation or of
policy, and I think it is fundamentally a domestic point of
view that prosecution should occur in the country of
nationality.
But as Mr. Richard said, this is changing. I might add
that, while it is only the initial judgment in the case that
you mentioned, there has been an initial judgment that the
individual was extraditable. Of course this will be appealed
and we will have to see the course of it as it goes along.
Mr. Richard. If I may just add, what I hear most often
across the table is the historic notion that there is something
innately troublesome about having your own national have to go
to a foreign country where he or she is not familiar with the
process, languages may be different, and that in theory the
fact that the country of nationality can prosecute resolves the
situation.
From a law enforcement point of view, frankly, one, these
countries rarely prosecute their own nationals for crimes
committed abroad, whether in the U.S. or other countries. When
they do, it is the exceptional case, and it is particularly
cumbersome and troublesome on our victims, who have to travel
frequently, who have to subject themselves to the process of a
foreign court if they want to see justice done.
Finally, in many of the more complex prosecutions
participants, co-conspirators and the like, are not about to
provide any assistance to these foreign prosecutions. So they
are not easy to put together. The statistics worldwide of
domestic prosecutions tends to be very low.
Senator Grams. I was going to follow up and say, is there
any way that we have assurances, that we can hold their feet to
the fire, so to speak, to do the prosecution. But you are
basically saying that we do not have that type of influence.
Mr. Richard. Well, we are making progress along those
lines. For those countries that have historical constitutional
barriers to that, we have been pushing, especially in the G-7
context, that they commit separate components within their
justice department, prosecutorial offices, equip them with the
capability of performing nothing but addressing these domestic
prosecutions, and that these prosecutions of crimes committed
abroad by their nationals be afforded the same priority as
their own domestic cases.
We are pushing this. The Attorney General has been pushing
it. It is not a very attractive alternative in our judgment,
but nevertheless until we convince them of modifying their laws
and constitutions I think we warrant at least the option in a
particularly heinous case to prevail upon these countries to go
with the domestic prosecution.
Senator Grams. Ms. Borek.
Ms. Borek. If I might just add to that, in cases where
there is a discretionary provision not to extradite on the
basis of nationality there is also typically an obligation
that, when the country refuses extradition solely on the basis
of nationality, it would submit that case, if requested, to the
relevant authorities for prosecution.
So in theory the obligation exists, but, as Mr. Richard
said, there are practical difficulties in making it effective.
But these are being addressed at the same time as trying to
promote a fundamental change in attitude about the whole
question.
Senator Grams. Mr. Richard, when you say we're making
progress in that direction, in those areas, is there an end in
sight or how would that affect the treaties we are addressing
here today as far as implementing any further pressures for
prosecution?
Mr. Richard. Well, from our vantage point the ultimate
objective is to have countries afford themselves the capability
of extraditing their nationals. That is the end, that is the
relationship that we think affords greatest opportunity to see
justice done in the international arena.
We are making progress, though, in those instances, at
least on the short-term basis, of countries that cannot or will
not extradite their nationals of ensuring that they do afford
us in those cases that we are interested in having domestic
prosecutions, that they afford us the opportunity to see a
viable prosecution brought, and by the steps I have indicated
are forcing them to create special units, special training in
foreign law, for those prosecutors and investigators,
mechanisms for us to assist in providing them with the evidence
and the like.
For example, Israel currently has the so-called Begin law,
which precludes extradition of Israeli nationals, but affords
the Israeli prosecutor the opportunity to bring charges in
Israel for crimes committed abroad. The difficulty is under
Israeli law at the present time they do not have an easy way of
gathering evidence abroad. So if there is a witness in the
United States who for one reason or another does not want to
travel to Israel, there is no easy mechanism for the Israeli
prosecutors to come to the United States and take a deposition
and have it admissible in court.
So our position is they must align themselves in such a way
as to be able to mount an effective prosecution. Fortunately,
in the case of Israel it looks like they are changing their
whole law to permit extradition of nationals.
Senator Grams. Ms. Borek, the extradition treaties grant
the Secretary of State authority to refuse where there is a
concern that the request for extradition is politically
motivated or for political offenses. What investigation will be
undertaken prior to extradition to ensure that a request is not
politically motivated? What kind of steps or procedures are in
place to assure this?
Ms. Borek. The normal procedure has two stages at which the
Department of State would look at the request. Initially the
requests are screened to make sure that they fit within the
terms of the treaty and that there is a sufficient amount of
evidence to establish a basis for proceeding.
However, the primary point at which this could become a
question is in the end, after a court has found someone
extraditable. It then comes back to the Department of State and
any sort of individual questions that might be raised
concerning the particular case, not only the political
motivation, but if there are other concerns about treatment or
what have you, are typically raised at that stage.
In our experience, in those cases in which there could be a
political motivation it is really the defendant who is most
keenly aware of that fact who brings it to the attention not
only of the Department of State, but also of others, including
courts at all stages in the process. So I think we have found
that this is raised, if it is an issue. In some cases it might
also be evident simply from looking at the request that it is
not well founded. But if there is a particular hidden angle, I
think the defendant is often the one to bring it out.
Senator Grams. Has the United States ever made a refusal on
these grounds that you can think of?
Ms. Borek. It is not uncommon for requests initially to be
found lacking in sufficient documentation. In some cases that
is simply because they do not really have a good case. In other
cases it could be because there is really some more
questionable motive. I think it is rare for a case to actually
get through the whole process and only have it come out at the
end.
Senator Grams. The India treaty contains an exchange of
letters that requires consultation and agreement, in addition
to the normal treaty requirements, when extradition is sought
for a court, and that is apart from the ordinary criminal laws
of the requesting state. But why was this exchange of notes
necessary in this treaty?
Ms. Borek. At the time this treaty was negotiated there
were difficulties concerning not only terrorism but the
government response to terrorism. There was a particular law,
the Terrorist and Disruptive Prevention Act, which was used in
connection with the detention and prosecution of persons
charged with terrorist offenses.
This law has lapsed as of 1995, but it still has some
retroactive effect for cases under investigation and trial
prior to that time. We were concerned that this law had
particular limitations upon the rights of defendants that have
been the subject of criticism, not only from nongovernmental
groups but also from the Department of State in the human
rights reports, and we were not prepared to undertake any sort
of blanket obligation to extradite if there was going to be
prosecution under that law.
In fact, the presumption is that we would not extradite if
there was going to be prosecution under that law. So we wanted
to have an understanding, a clear understanding and arrangement
with the government of India on this point.
Senator Grams. Under what circumstances would the United
States agree to extradite an individual to such a court?
Ms. Borek. I do not know that we can imagine the situation
under this particular law, but in general I suppose if you had
a situation where, for example, an individual had been
responsible for a bombing along the lines of the bombings of
the Embassies in Kenya and Tanzania and there was no other
viable way of prosecuting the person, I suppose we would take a
very serious look at how deep our concerns were and exactly
what our concerns were in connection with the due process
rights of the defendant.
But I do not think, since this particular law is
retroactive and we know the universe of cases--at least someone
theoretically knows the universe of cases--we do not anticipate
it in connection with this particular treaty.
Senator Grams. Could any of the extradition treaties be
used to extradite an individual to a multilateral criminal
tribunal through one of the treaty partners?
Ms. Borek. Not directly. The question would be whether,
having extradited someone to, for example, one of the treaties
that is pending now, the treaty partner would turn around
subsequently and retransfer or re-extradite someone to the
multilateral institution. This is covered implicitly in
limitations which are typically referred to as the rule of
specialty, which put certain restrictions not only on
retransfer, but also on adding charges that were not contained
within the original extradition request. Of course, that would
also be the case in this kind of situation. It does require the
consent of the extraditing state to do this. We have discussed
informally the fact that, because this is implicit, it might be
desirable to clarify and make it explicit in connection with
this type of situation.
Senator Grams. Do we have any opportunity for any redress
if the extradition has taken place and we find out that a
prisoner is being moved to a third country or additional
charges are added? I mean, once the horse is out of the barn,
so to speak, do we have any way to police that type of
activity?
Ms. Borek. I am not aware that there has ever been a
problem in this area. This is one of the most fundamental
undertakings in an extradition agreement. It is well accepted,
I think, as established not only in U.S. practice, but
generally in extradition practice. I think our experience has
been that countries respect it.
In fact, it is quite common to get requests to add
additional charges. So there is a history of compliance there.
Senator Grams. Could any of the mutual legal assistance
treaties be used to provide information to a treaty partner for
use in an investigation by a multilateral criminal tribunal?
Ms. Borek. There is a standard provision in the mutual
legal assistance treaty which limits the use of information. I
will just sort of read one which is from the Luxembourg treaty.
It says that: ``The central authority of the requested state
may require that the requesting state not use any information
or evidence obtained under this treaty in any investigation,
prosecution, or proceeding other than that described in the
request without the prior consent of the requested states.''
There is an exception where it has been made public, and
then there is an exception which is basically for the United
States, when it is required to disclose information to the
defendant, for example, as exculpatory material. But the
fundamental obligation is that, to the extent this is not
public information, the state providing the information can
require that it should not be used in any other prosecution,
including other prosecutions by the state itself.
Mr. Richard. If I may add just a historical footnote, the
use limitation has historically been used as a sword against us
with respect to our ability to use information that we acquire,
generally in the context of tax cases or cases involving
offenses that the other party to the treaty does not
necessarily want to support. So it has generally been used
offensively against us, although I recognize and I am not
minimizing the concern here.
Each of the treaties--the whole construct here through the
central authority is to establish a relationship, if you will,
between the central authorities, and I would anticipate that we
would have a variety of opportunities to either attempt to
block such a misuse of our information or to know it in advance
and then be in a position to just simply assure that it not go
over unless we had sufficient comfort that it would not be used
in this distorted way.
Senator Grams. Mr. Richard, I have a number of questions
for you. But Ms. Borek, if you would like to jump in and add
anything to these questions, please feel free to do so.
Mr. Richard, in the case of Balzeese versus the United
States the Supreme Court recently observed that the Fifth
Amendment privilege against self-incrimination might apply in
instances of multi-international or multinational law
enforcement efforts. Do you anticipate that this case will have
any impact on the execution of MLAT requests?
Mr. Richard. We have contended with this issue of
attempting to invoke privileges, both domestic privileges and
the privileges of the other country. We have been dealing with
this situation under existing treaties. It has not proven in my
judgment to be a particularly significant impediment, if you
will, to our ability to proceed.
The recent Supreme Court ruling with respect to the
availability to invoke the Fifth Amendment as a result of fear
of foreign prosecution I suspect will assist us, if anything,
in gathering information. So I do not think it is going to be
an impediment, frankly.
Senator Grams. Under the treaty, how do U.S. constitutional
protections apply to information or evidence collected outside
of the United States?
Mr. Richard. Let me say, the ultimate arbiter of that
question is a U.S. judge. For example, if we are taking a
deposition abroad and an individual seeks to invoke a privilege
under U.S. law, the provisions generally provide for us to take
the testimony and have that issue adjudicated at the time when
we are seeking to admit the evidence in a U.S. court.
The U.S. court can rule on the validity of the invocation
of the privilege. So ultimately there is evidence that will be
before the court in the United States and judged as to its
constitutionality by the U.S. court.
This has raised interesting questions, but with respect to
issues of acquiring information and evidence pursuant to the
treaty I think the Fourth Amendment reasonableness standard
will be looked to heavily by the courts and if the process
employed reasonable, and that it will be because it will be
pursuant to the laws of the receiving country, pursuant to the
treaty, I think the courts will appreciate that the process has
been a reasonable one.
Senator Grams. According to some of the statistics that I
have, although there has been an increase in extraditions to
the United States, the number of extraditions from the United
States has actually declined. Is it accurate that there has
actually been a decline in extraditions from the United States?
Mr. Richard. Well, I think in terms of the actual numbers
that we have managed to send out pursuant to extradition
treaties, our statistics I believe do reflect a small decline.
Staff brought it to our attention and we have been considering
possible reasons for it. One of them, and it is pure
speculation on my part at this time, is that at one time
extraditions were few in number, the defense bar tended to be
fairly unfamiliar with what is a fairly old and archaic
process.
But those times are changing now. The extradition is being
examined very closely. I think that it is taking more and more
time to get them through our courts and I suspect that this may
be slowing down our own process, if you will. There is more
inclination to seek habeas relief when there is an extradition
granted by our courts, and I do think the courts are taking a
hard look at it.
As you know, they recently entertained a challenge to the
entire structure of our extradition relationship in the LaBue
case. Ultimately that was resolved upholding the current
structure, but nevertheless that alone created a certain
interest in the entire field by the legal community.
Senator Grams. As you stated in your testimony, Mr.
Richard, the pending treaties are mainly with Caribbean
countries as well as Eastern and Western Europe, and will be
important to law enforcement efforts with regard to money-
laundering, organized crime, and drug trafficking. A thorny
effort in the area of international criminal investigations has
been the unwillingness of countries to forego bank secrecy
protections.
Now, what progress do these countries make in enabling law
enforcement to retrieve any bank information previously that
had been protected by the bank secrecy laws before?
Mr. Richard. Frequently it is precisely the treaty itself
that provides the mechanism to pierce the bank secrecy and
other domestic confidentiality provisions. When we go under a
letters rogatory process, frequently the domestic law would not
permit the court on the basis of comity merely to set aside the
secrecy provisions. Pursuant to the treaty, we do acquire and
it is a major point of negotiations to be sure that we do have
access to bank records and other similar confidential
materials. These are indispensable for making money-laundering
cases, drug cases, and the like.
I think the Cayman Island treaty, which has been in place
for a while, is a prime example where before the treaty we had
a terrible time trying to pierce bank secrecy. Under the treaty
we do it routinely now. We would hope that we would continue to
see good results under the treaties.
The question of money laundering is particularly acute. A
lot of these countries have by reputation alone significant
money laundering problems and it is precisely for that reason
that we wish to have the treaty as a vehicle for trying to
pierce that secrecy.
Senator Grams. Under a Senate condition to ratification of
a bilateral tax treaty with Luxembourg, the pending mutual
legal assistance treaty with that country must be first
ratified. What, if any, additional law enforcement tools will
that treaty provide for the investment of criminal and civil
tax investigations in Luxembourg?
Mr. Richard. You are talking about the tax treaty?
Senator Grams. Yes.
Mr. Richard. Or the mutual legal assistance treaty? The
mutual legal assistance treaty will only apply to a criminal
tax matter, where the tax treaty itself applies to both
criminal and civil and is much more specific and broad-based
than the one with the treaty.
The current treaty in Luxembourg, mutual legal assistance
treaty, provides that assistance will be granted for offenses
involving value added taxes, sales taxes, excise taxes, customs
duties, and any other taxes therein after agreed to by the
contracting parties through the exchange of diplomatic notes.
Senator Grams. The mutual legal assistance treaties commit
the United States to search, seizure, and delivery at the
request of a foreign government and empower American courts to
issue warrants and other orders necessary to execute a treaty
request. Now, the Electronic Communications Privacy Act and the
Foreign Intelligence Surveillance Act both reinforce the
commands of the Fourth Amendment with procedural requirements
that may not themselves be constitutionally required.
So does the treaty require the United States to honor a
treaty request for electronic surveillance within the United
States?
Mr. Richard. Sir, I am not aware that mutual legal
assistance treaties have ever been used as a vehicle for
acquiring electronic surveillance, except at best in situations
where we had independent jurisdiction of the activities. Where
this is a crime committed wholly abroad and there is no
jurisdictional basis for our own law enforcement, I am not
aware that we have ever done that.
The whole concept of search and seizures in the mutual
legal assistance area must be done in accord with U.S. domestic
law. So that it is not something that, for example, both in
terms of the standard and the jurisdiction, that our own courts
will not scrutinize and determine if it is constitutional. The
mere fact that a country is requesting it will not be
dispositive of our ability to do it.
But like I say, I am not aware that we have ever done that
under a mutual legal assistance treaty. Certainly this is only
limited to criminal requests, so that, for example, a foreign
intelligence service approaching us for assistance in
connection with an intelligence matter, this treaty would not
be available for that.
Senator Grams. In another area, the Hong Kong Prisoner
Transfer Treaty that was mentioned contains a standard
provision regarding the enforcement of sentences in the country
receiving the transferred prisoner. Specifically, the treaty
requires that the laws and procedures of the party receiving
the prisoner regulate the continued enforcement of the sentence
with respect to the conditions for imprisonment and any
reduction of sentence, conditional release, or parole.
So how does the United States ensure that the prisoner who
is transferred under similar treaties actually would finish out
their sentences in prison?
Mr. Richard. When you say ``ensure,'' I am not sure that we
have a mechanism per se to ensure it. We are in a position to
make inquiry as to what the conversion is, if you will, in
terms of the sentence. At times, if we are not satisfied with
what we anticipate would be the length of time, if you will, we
always have the option of refusing to transfer.
I cite, for example, the Barraldini case with Italy, where
that is precisely an issue between us and Italy. After the
fact, of course, one of our concerns is that we not see a
revolving door, if you will, we transfer a prisoner and the
next moment the prisoner is released pursuant to the laws of
the receiving country.
I think as a practical matter we become familiar with the
processes of the host government and try to ensure that we have
a fair read on what we can expect. But I have seen it work the
other way, in all candor. I have seen prisoners suffering
significant legal sentences abroad transferred here and, in
accord with our system, the amount of time they spend in the
U.S. on a converted sentence is much less than that which is
imposed abroad. It is a reciprocal aspect of the situation.
But we are in a position to simply refuse if we do not
think it is going to be fair and equitable under the
circumstances.
Senator Grams. Now, what guidelines are applied in the
decision, then, to consent to such a transfer so as to ensure
that prisoners that have committed violence or other serious
crimes are not eligible for transfer and potential release in
the receiving country? So you are saying that there are
guidelines or there are inquiries made or assurances that you
want to have before the transfer would actually be made?
Mr. Richard. Yes. Well, I do not want to suggest that in
every case we seek specific assurances. We do not. We have a
process in place, which I would be glad to articulate in
writing to the committee. But essentially it consists of
consulting with the prosecutors, consulting with the law
enforcement agencies that had developed the case, interested
parties, victims if necessary, to get an indication from them
as to the receptivity of a transfer.
Frequently we look to issues of have they cooperated with
law enforcement after their conviction, do they have any
outstanding fines, have they made the restitution required, and
so forth. Then we make a policy judgment in a particular case
whether to grant it or not.
Where we have anticipated or a basis to believe, because of
their own family ties, being in the United States,
notwithstanding their citizenship, we might be very reluctant
to transfer because chances are that individual once they hit
the streets will try to come right back to the U.S. So it is an
assessment. But I can give you a chapter and verse of how we go
through the process.
Senator Grams. I would probably prefer that in writing if
you could, just give us a short background on it.
Mr. Richard. Yes, I would be glad to.
Senator Grams. Thank you.
State law enforcement officials also have the ability to
request extradition through your office as well as to seek law
enforcement from a foreign country. What kinds of educational
outreach does the Department of Justice do to ensure that State
law enforcement officials are aware of the treaties, the
benefits, and also some of the procedures for utilizing these
treaties? Is there an outreach, a program that is available?
Mr. Richard. Yes, and one that is becoming more and more
intense. We have recently begun a program whereby we bring in
as a representative of State and local authorities a detailee
right into our Office of International Affairs. We also
participate in a variety of conferences with State and local
authorities when they meet. There are annual national
conferences among State extradition officials, for example. We
are always in attendance and provide presentations.
We have various manuals that we have prepared on the
procedures for preparing extradition packages which we send
out. The Attorney General recently wrote to, I think, just
about every local prosecutive agency identifying our Office of
International Affairs as the vehicle for answering any of their
needs in the international area on extradition and mutual legal
assistance.
We are exploring additional avenues, if you will, primarily
through our State and local law enforcement committees as an
additional vehicle for educating State and local authorities on
the process. Our objective is to bring State and local
officials into the entire process. In particular, for example,
we want to get their feedback as to what the priority countries
should be in terms of future negotiations, for example. We want
to know where they are encountering problems in acquiring
evidence or fugitives fleeting and so forth. So we want them to
be partners with us in this whole international enforcement
arena.
Senator Grams. Now, prior to extradition in capital murder
cases some treaty partners seek assurances that the death
penalty will not be imposed in the event of a guilty verdict.
Now, the Secretary of State generally gives that assurance
based on similar assurances from the U.S. State seeking
extradition.
Is such an assurance from the State government sufficient
for most foreign governments?
Mr. Richard. Maybe Ms. Borek can answer that. My
understanding is that by and large, yes, although on occasion I
seem to recall that sought State Department assurances
themselves that this is an accurate assurance. But I would
stress, though, that this is a process of consultation with the
State authorities. It is their choice whether to give the
assurances or not, and it is a balancing act. Do they wish to
forego the extradition request, which may be the consequence of
not giving the assurance, and rely on the hope that the
individual might at some future time be apprehended if he or
she were to leave the country or what have you and locate
somewhere else?
It is a decision that frequently is a difficult one to make
by the State authorities, and we work with them the best we
can. At times we can convince the host government that the
assurances, while not categorical, are adequate, so that they
not be in effect denied, that the extradition is not denied
across the board and the State interests are protected.
It is not, as I say, a situation that we necessarily
endorse, although on one occasion in one of the treaties we
want the capability of demanding assurances because the other
country has at least the potential of having the death sentence
for crimes that we would not otherwise impose the death penalty
on.
Senator Grams. Ms. Borek, did you want to add anything?
Ms. Borek. Thank you. I think foreign governments generally
realize that having the assurance of the actual prosecuting
authority is more important than having the assurance from the
State Department from the practical point of view. Certainly,
we always seek that as a precondition for giving any further
assurances.
I think that, as Mr. Richard said, from time to time we are
asked to endorse that assurance. But I think this has been
generally effective, and when there has been a difficulty it is
not with the source of the assurance. There have been issues
with Italy about the whole system and how it works, but it
certainly is not because they have any particular lack of
confidence in State or local prosecuting authorities.
Senator Grams. Would there be any question of the method of
execution?
Mr. Richard. That has on occasion come up, come up in the
context of concerns expressed by the European court on this
death row phenomenon, the individual has been on death row so
long that that process itself has proven unusual in the
judgment of some. So that is often the basis of an attack, if
you will, on the process, not directed necessarily at death
penalty concepts, but rather the process employed in this
country and the length of time it takes from conviction to the
execution.
So this is being raised on occasion in the European courts,
but so far it has not precluded, at least to my knowledge, an
extradition on that basis alone.
Senator Grams. What recourse does the Secretary of State
have if the U.S. State does not honor its agreement to suspend
the death penalty where an extradited murderer is found guilty
in a capital murder case? Again a hypothetical.
Ms. Borek. That is a question which has been the subject of
considerable legal analysis. I cannot give you a definitive
answer on that because, happily, it has never been an issue in
a real case. I think we rely fundamentally on the validity of
the assurances in the first instance. Otherwise I think we
would have to seek some sort of legal action vis a vis the
authorities in question and intervention via the Justice
Department if necessary.
Senator Grams. And you would employ intervention? I mean,
you would see that as a logical----
Ms. Borek. Certainly we would want to see the assurances
upheld. I think we would consider that as an absolute last
resort.
Senator Grams. Mr. Richard, just one final set of questions
here. In your testimony you referred to the United States being
on the cutting edge of criminalizing newly emerging criminal
activity, such as money laundering, computer-related abuses,
and environmental crimes.
Mr. Richard. Yes, sir.
Senator Grams. Do each of the pending extradition treaties
require extradition for these crimes?
Mr. Richard. I believe all of them--it is all under the
dual criminality concept. When we go into extradition
negotiations, we do particularly hone in on just what are the
laws of the other country with respect to these kinds of
offenses. It goes on: computer crimes, money laundering,
conspiracy, what we call our RICO statute, our racketeering
statute, and the like.
So we try to satisfy ourselves, when possible, that we have
the broadest coverage as possible.
All the extradition treaties that we have before us do
cover these types of offenses.
Senator Grams. Have mutual legal assistance treaties
currently in force, have they been effective in ensuring
extradition of individuals charged with these types of crimes
as well?
Mr. Richard. That is an interesting question. I am not sure
that we have ever gone back and taken a look at the evidence
that we have acquired under a mutual legal assistance treaty
and seen how much of that has been subsequently incorporated
into an extradition request. I am not sure I can answer that.
However, I do know in many of these cases we use them in
tandem, if you will, so that we are in effect requesting the
extradition plus we are requesting assistance in gathering
evidence from that location at the same time. At times under
the extradition provisions at the time of the arrest of the
individual he or she may be in possession of materials which by
the terms of the extradition treaty are also seized. So they
are effective vehicles, but I am not sure we collect statistics
along those lines.
Senator Grams. Mrs. Borek, anything to add?
Ms. Borek. No.
Senator Grams. Well, that is all the questions I had, but
what I would like to do is leave the record open for probably
the remainder of the week in case--I know other members of the
committee might want to submit some questions in writing for
you. If that happens, if you could answer and respond and send
them back to the committee in due process, hopefully. If you
have any other additional information that you would like to
supply to the committee, please do that as well as in writing.
Again, I want to thank you for your time this morning and
your answers, and I appreciate the responses.
Mr. Richard. Thank you very much, Mr. Chairman.
Ms. Borek. Thank you.
Senator Grams. The hearing is now complete.
[Whereupon, at 11:12 a.m., the committee was adjourned,
subject to the call of the Chair.]
A P P E N D I X
----------
U.S. Department of Justice,
Criminal Division, Washington DC 20530,
October 8, 1998.
Patricia McNerney,
Counsel, Foreign Relations Committee,
United States Senate,
Washington DC 20510.
Dear Ms. McNerney: The Department of Justice has carefully considered
the proposals from the National Association of Criminal Defense Lawyers
with respect to the mutual legal assistance treaties, prisoner transfer
treaties, and extradition treaties now pending before this Committee.
We believe that these proposals, if adopted, would hamper rather than
enhance law enforcement efforts to develop effective mechanisms for
securing cooperation from foreign criminal justice agencies.
I. Mutual Legal Assistance Treaties (MLATs)
The NACDL's proposal that the Senate place language in the reports
that purport to allow any of the hundreds of Federal or state judges
across the country to order the Government to make MLAT requests on
behalf of criminal defendants, despite the explicit language to the
contrary in the treaties themselves, would be contrary to the public
interest in fighting international crime effectively. This proposal
strikes at a basic premise of the treaties, and in the unlikely event
our treaty partners would accept such a change, could transform the
MLATs from important and useful law enforcement tools into mechanisms
of little value to the government which, moreover, can be used by
defense attorneys to frustrate criminal prosecution.
The Department of Justice believes that the MLATs before the
Committee already strike exactly the right balance between the needs of
law enforcement and the interests of the defense. The MLATs were
intended to be law enforcement tools, and were never intended to
provide benefits to the defense bar. It is not ``unfair'' for MLATs to
govern assistance solely between U.S. and foreign Government
prosecutors and investigators, any more than it is improper for the FBI
to conduct investigations for prosecutors and not for defendants. The
Government has the job of assembling evidence to prove guilt beyond a
reasonable doubt, so it must have the tools to do so. The defense does
not have the same job, and does not need exactly the same tools.
We know that the NACDL has raised this issue repeatedly since 1988.
For example, in 1992, Michael Abbell (then counsel to leaders of a
Colombian drug cartel) strongly urged on behalf of NACDL that this
Committee require that MLATs permit requests by private persons such as
defendants in criminal cases. To our knowledge, however, no court has
ever ruled that due process or fairness require that MLATs be made
available to defendants. The Senate Foreign Relations Committee did not
adopt NACDL's proposals in 1988 or 1992, or at any time since then, and
the farthest the Committee has gone to accommodate this claim has been
to comment, in connection with one MLAT in 1989:
[C]oncern was raised that defendants in criminal cases are
explicitly excluded from use of the Mutual Legal Assistance
Treaties. The committee notes that nothing in this treaty is
intended to negate the authority of the Court to ask the
prosecution to make requests for information under the treaty.
(emphasis added)
The Committee has since declined to include such language with respect
to any subsequent MLATs. It should be noted that the 1989 comment
referred only to a court's ability to request that the prosecution make
an MLAT request, and thus is much more reasonable than the NACDL's
current proposal that the Committee offer an opinion on the court's
power to order the U.S. Central Authority to make such requests.
We believe that the Committee's disinclination to adopt the NACDL's
suggestions have been correct for several reasons.
First, a major problem with making defense requests under MLATs is
that any position we take is likely to be reciprocal. In other words,
if the U.S. sends requests on behalf of criminal defendants in the
U.S., we may have to execute requests made by our MLAT partners on
behalf of criminal defendants abroad. This effectively will force the
Department of Justice, the FBI, and other U.S. agencies to help foreign
defendants (including drug traffickers like the members of the
Colombian drug cartels) combat the criminal charges lawfully brought
against them by our MLAT partners. This may further the interests of
U.S. defense attorneys representing those persons, but it hardly serves
the U.S. public interest. Indeed, in some cases, the NACDL position
would place the Department of Justice in an awkward conflict of
interest, because we would have to simultaneously help foreign
prosecutors obtain the evidence needed to convict foreign criminals and
assist those same criminals to avoid conviction.
Second, since the MLATs were not negotiated for use by the defense,
they contain several provisions which make them inappropriate
instruments for defense requests.
For example, the MLATs require the Requested State to pay much of
the costs of executing requests for assistance. When we anticipate the
costs of a proposed MLAT, we considered the likely volume of requests
from U.S. and foreign law enforcement, but no assessment of possible
defense requests is made. Since our treaty partners likely make the
same calculation, some of them may refuse to ratify an MLAT rather than
take on an obligation to assist criminal suspects as well as U.S. law
enforcement.
Another, more important issue involves the processing of requests.
Each MLAT names the Attorney General as Central Authority for the
United States. The Attorney General has delegated many of the duties of
this role to the Office of International Affairs (OIA) in the Criminal
Division. The function of that Office is not merely one of a ``post
office'' or ``switchboard'' for the transmission of requests, but
rather involves, on a daily basis, a critical role in the prosecutive
process, including consulting with and advising the prosecutors seeking
assistance under the MLAT. OIA regularly resolves questions as to how
best to cast a request so that it will fall within the scope of the
relevant MLAT; develops strategies designed to obtain evidence in a
form admissible in a U.S. court; and collaborates with the requester to
present the request in the most effective form, and with the most
persuasive arguments, in order to convince the requested state to
provide the assistance needed. All of this requires a probing analysis
of all the relevant facts in the case, and, in essence, creates an
``attorney-client'' relationship between the requestor and the OIA
attorney. To place OIA in the position of counselling the defense in
the formulation and transmittal of MLAT requests and advocating such
requests to foreign officials creates a conflict of interest. (This is
particularly true in Federal criminal cases, where the prosecutor and
the defendant may be seeking, through OIA, to pursue evidence in the
same case). It also is doubtful that the defense would wish to fully
disclose the theory of its case, the evidence it already has, and its
proposed trial strategy, and other extremely sensitive matters relating
to its trial strategy to a federal prosecutor working for the Criminal
Division of the Department of Justice. That, however, is precisely the
kind of disclosure that is essential for OIA to properly and
successfully pursue MLAT requests. Moreover, there is a further
conflict of interest since OIA must necessarily establish a priority
among the requests it receives, identifying and handling the more
urgent ones earlier than the less urgent.
Finally, the MLATs before the Senate were designed to provide
solutions to problems that our prosecutors encounter in getting
evidence from abroad. The problems encountered by prosecutors in
employing letters rogatory are most serious when seeking evidence
before indictment, and criminal defendants never had those problems at
all. Even post-indictment, the problems faced by the Government and the
defense are not equivalent, because. The defendant frequently has far
greater access to evidence abroad than does the Government, since
often, it was the defendant who chose to use foreign institutions (such
as foreign banks in which evidence is located) in the first place.
Thus, the Government most often uses MLATs to obtain copies of a
defendant's foreign bank records; in such cases, the defendant already
has copies of the records, or can easily obtain them simply by
contacting his or her bank directly. Similarly, the Government uses
MLATs to arrange through the foreign government to question the
defendant's criminal associates abroad, persons that the defendant can
usually contact and speak to without foreign government intervention.
In short, the NACDL proposal is a ``solution'' for which no serious
problem has ever emerged.
II. Inter-American Prisoner Transfer Convention
The NACDL supports the Senate approval of the Inter-American
Prisoner Transfer Convention, which was transmitted to the Senate
September 30, 1996. The Departments of Justice and State also support
approval of this convention, as well as approval of the Inter-American
Mutual Assistance Treaty and companion Protocol on Assistance in Tax
Cases; the Inter-American Convention on Firearms Trafficking; and the
Inter-American Convention Against Corruption. The Committee may wish to
schedule a single hearing on all of these OAS law enforcement treaties.
III. Extradition Treaties
The NACDL suggests that some of the treaties now before the Senate
``contain waiver of extradition provisions that do not follow the most
recent U.S. extradition treaties.'' In fact, the treaties before the
Senate are typical of recent extradition treaties on this point. The
NACDL is simply incorrect when it suggests that most recent U.S.
treaties mandate that waivers occur ``in a formal court proceeding . .
. in which [the fugitive] is: (1) represented by counsel; (2) advised
of his rights under the treaty and the laws of that country; and (3)
advised as to the effect of his waiver under the laws of the requesting
country.'' While it is true that many recent U.S. extradition treaties
contain some provision for simplifying or waiving extradition, most do
not specify the procedure to be followed for waivers, and none of them
go into the level of detail that the NACDL suggests. In our view, it is
sufficient if the treaty states that waiver may be take place, leaving
the precise procedure to be followed to the law and practice of the
state where the proceeding occurs.
The Administration is committed to bringing these treaties into
force as soon as possible. We stand ready to respond to any further
questions the Committee may have about these treaties.
Sincerely,
Mark M. Richard,
Deputy Assistant Attorney General.
__________
United States Department of State,
Washington, DC 20520,
September 29, 1998.
The Hon. Jesse Helms,
Chairman,
Committee on Foreign Relations,
United States Senate.
Dear Mr. Chairman: Following the September 15, 1998 hearing at which
State Department officials testified, additional questions were
submitted for the record. Please find enclosed the responses to those
questions.
If we can be of further assistance to you, please do not hesitate
to contact us.
Sincerely,
Barbara Larkin,
Assistant Secretary,
Legislative Affairs.
Enclosure:
As stated.
Responses of the Department of State to Questions Asked by Senator
Helms
1. During the 105th Congress, the Senate has been asked to give its
advice and consent on almost as many MLATs as have entered into force
in the last 20 years.
Question 1A. How many MLATS are estimated for the 106th Congress?
Answer. Based on the number of mutual legal assistance treaties
currently under negotiation or recently signed, we estimate that as
many as 12-15 new MLATs will be signed and sent to the Senate for
advice and consent to ratification by the end of the 106th Congress.
Question 1B. How many MLAT requests did the United States receive
in the last year?
Answer. The U.S. Justice Department's Office of International
Affairs opened 416 cases involving requests received under the twenty
MLATs now in force. A chart showing the breakdown of these cases by
country is at Annex 1. Some of these cases involve multiple requests
from the other country. With respect to this question and questions 1C
through 1E, we note that statistics regarding formal requests reflect
only one advantage of creating MLAT relationships. The relationships
created between the Central Authorities enable numerous informal
contacts and cooperation in law enforcement matters beyond those which
are reflected in formal requests.
Question 1C. How many MLAT requests did the United States submit in
the last year?
Answer. The U.S. Justice Department's Office of International
Affairs opened 290 cases involving requests under the twenty MLATs now
in force. The attached chart shows the breakdown of these cases by
country. Several of these cases involve multiple requests to the other
country. Some of these cases were opened by the Office of International
Affairs but have not yet resulted in requests being made (e.g.,
requests may be in preparation or may not, based on available
information, meet the relevant treaty's requirements)
Question 1D. How many additional MLAT requests is the United States
likely to receive annually should each of the pending Treaties go into
effect?
Question 1E. How many additional MLAT requests is the United States
likely to submit annually should each of the pending Treaties go into
effect?
Answer. It is not possible to predict with certainty the number of
requests that will be received or submitted annually under a particular
treaty or treaties because the number of requests is greatly affected
by factors that cannot be quantified or predicted (including, for
example, shifting crime trends in both the U.S. and the foreign state,
the pace at which each treaty partner enacts implementing legislation,
and the degree to which individual and institutional witnesses in the
requested state cooperate with particular requests). The nineteen
countries with MLATs now before the Senate together generated about 84
incoming cases and 42 outgoing cases in the last year under the pre-
MLAT procedures now in place. It is reasonable to assume that at least
that number of cases overall will be generated once the proposed MLATs
enter into force.
Question 1F. What are the most common types of assistance we are
asked to provide?
Answer. The most common type of assistance the United States is
asked to provide under our mutual legal assistance treaties is to
arrange for a statement to be taken from a person located in the United
States regarding an investigation possible prosecution of that person
abroad. The U.S. is frequently asked to obtain bank records or
corporate documents located in the U.S. that are related to suspect
financial transactions in other countries.
Question 1G. What are the most common types of assistance we
request?
Answer. The most common type of assistance we request is the
production of bank or business records located abroad that are related
to suspect transactions being investigated or prosecuted in the United
States. Other kinds of requests include requests for interviews in the
foreign state with suspects or witnesses, requests for government
records such as police reports or records of convictions, and requests
to help arrange for witnesses to travel to the U.S. for questioning.
The type of assistance requested varies with the state involved. For
instance, Switzerland, the Cayman Islands, and the Bahamas are major
financial centers, and a large percentage of our requests there are for
bank and business records; conversely, relatively few of our requests
to the Philippines have been for bank records.
Question 1H. How might the types of assistance sought and requested
be expected to change in the future?
Answer. We do not expect the types of assistance to change
significantly in the future, but it is almost impossible to predict
this with certainty.
Question 1I. How might the types of assistance sought and requested
be expected to differ under the pending Treaties should they go into
effect than under existing MLATS?
Answer. We do not expect the types of assistance sought and
requested to differ under the pending treaties from the overall
situation under the existing MLATs. However, we expect the assistance
sought and received to vary by treaty, based on the needs in individual
cases.
2. The Technical Analyses accompanying various MLATs have from time
to time offered an understanding of the reach of an essential interest
clause or some other feature common to most MLATs or to the practices
associated with their implementation.
Question 2A. To what extent do these individual understandings have
general application?
Answer. The discussion of the ``essential interests'' clauses found
in each of the Technical Analyses is intended to reflect the discussion
of the relevant provision during the negotiation of that particular
MLAT. The understandings reached in the negotiation of the relevant
clause were generally similar among the various treaties and to that
extent they are of general application. Where a particularly detailed
or nuanced understanding of ``essential interests'' was agreed upon in
a particular negotiation, that fact is reflected in the Technical
Analysis (see, e.g., Technical Analysis of the U.S. Australia MLAT).
Question 2B. Under what kinds of circumstances are we likely to
invoke the essential interests clause?
Answer. We would be likely to invoke the essential interests
clause, for example, if executing the request would prejudice U.S.
security interests, might oblige us to take action that we believe
would violate the Constitution, or if executing the request would be
inconsistent with an applicable proviso developed during the
ratification process.
Question 2C. Under what kinds of circumstances are other nations
likely to invoke the essential interests clause in response to a
request from us?
Answer. None of our MLAT treaty partners has yet denied a U.S.
legal assistance request on essential interests grounds. We could
envision, for example, a request being denied on national security
grounds or perhaps where the request involves a case or investigation
for which the death penalty is possible in the United States but not in
our treaty partner.
Question 2D. Would you permit one of the several States of the
United States that has abolished the death penalty to decline to
execute a Treaty request related to a capital offense on the basis of
the essential interests clause?
Answer. Under each of the MLATs, only our Attorney General, as
Central Authority, or her designee, may deny a request on the basis of
essential interests. Moreover, the overwhelming majority of MLAT
requests are executed by Federal officials acting under Federal law (28
U.S.C. Sec. 1782), and state officials would not usually be involved.
If for some reason state officials were called upon to execute an MLAT
request, we would not expect them to decline to execute a request
because it related to a capital offense, because we believe that even
those states that have abolished the death penalty recognize the
important public interest in efficient and effective investigation of
capital cases in other nations. Indeed, states within the U.S. that
have abolished the death penalty do not refuse to cooperate with other
states within the U.S. that do have capital punishment, and we expect
them to cooperate similarly with our MLAT partners.
Question 2E. Has the United States ever denied a request based on
the ``essential interests'' proviso included in most MLATS? What
inquiry is made to ensure the requirements of this proviso are met?
Answer. So far, the United States has not denied any requests based
on the essential interests provisos. The thorough inquiry we make to
ensure that the requirements of the various provisos are enforced
involves the identification by the Justice Department of the relevant
senior government officials who will have access to the information,
and consultation with all other appropriate intelligence, antinarcotic
and foreign policy agencies to make the relevant determinations.
Question 3. Does the term ``person'' in the locate-and-identify
articles refer only to human beings? Does the term ``person'' in the
locate-and-identify articles refer to fugitives?
Answer. The term ``person'' in locate and identify articles refers
to both human beings and legal persons (e.g., corporations or
institutions). The person could refer to a fugitive whose location we
want to ascertain, but it could also be a witness we would like to
interview or a person whom we wish to serve with process.
Question 4. Why is the Extradition Protocol with Spain necessary?
Are there any specific cases this Protocol would affect?
Answer. The primary reason the Extradition Protocol with Spain was
negotiated was that the main U.S.-Spain Treaty requires that
extradition not be granted if the statute of limitations of either the
Requesting State or the Requested State has expired, and this proved to
be extremely difficult to implement. The Protocol substituted the much
simpler rule that the statute of limitations of the Requesting State
alone be applied. The Protocol also addresses the issue of amnesties by
stating that amnesties in the Requested State will not bar extradition,
and includes provisions on waiver of extradition and rule of specialty.
The changes to the U.S.-Spain extradition relationship will be of
general future application and will affect any future case brought
under the treaty, as amended. The Protocol was not negotiated to
address any particular pending or future case.
Question 5. Why is the Extradition Protocol with Mexico necessary?
Are there any specific cases this Protocol would affect?
Answer. The primary reason for the Mexico Protocol is that the main
U.S.-Mexico Extradition Treaty does not provide for temporary
extradition for trial of persons whose final extradition must be
deferred because they are serving long sentences in the Requested
State.
An important impetus for the Protocol was the inability of U.S. and
Mexican authorities under the 1978 Treaty to effect the temporary
surrender to New York of a dangerous felon (Luis Martinez) wanted for
prosecution there on multiple murder charges. Arranging Martinez' trial
in New York, before the completion of a seven-year Mexican prison
sentence he was serving, was urgent because of the imminent loss of the
only eyewitness to the crime, who was planning to leave the country.
Given the relatively more serious nature of the U.S. charges, Mexico
eventually agreed to parole Martinez so that he could be released and
surrendered to U.S. authorities. According to our most recent
information, he is currently awaiting trial in New York.
Question 6. Please state for the record the countries that:
are required by the pending treaties to extradite their
nationals.
have the discretion to extradite their nationals and the
legal authority to extradite their nationals under domestic
law.
have the discretion to extradite their nationals but do not
have the legal authority to extradite their nationals under
domestic law.
Answer. The extradition treaties with Antigua and Barbuda,
Argentina, Barbados, Dominica, Grenada, India, St. Kitts and Nevis, St.
Lucia, St. Vincent and the Grenadines, Trinidad and Tobago and Zimbabwe
all require extradition of nationals. The extradition treaties with
Austria, Cyprus, Luxembourg, and Poland give each party the discretion
to extradite its nationals, but each of these nations at this time is
prohibited by statute or constitution from doing so. (At the time of
the negotiations, Poland apparently had the legal authority to
extradite its nationals if a treaty so provided, but a subsequent
amendment of its Constitution eliminated that possibility). The
extradition treaty with France gives the United States the discretion
to extradite its nationals to France, but does not include similar
discretion for France to extradite its nationals to the United States;
a 1927 statute prohibits France from extraditing French nationals.
The Mexico and Spain Protocols before the Committee do not address
the issue of extradition of nationals. For the record, however, Mexico
will extradite nationals under some circumstances. Spain historically
has not extradited its nationals because of limitations in its national
law, but a recent favorable judicial decision suggests that extradition
of nationals may become possible under some circumstances.
Question 7. Please state the State Department policy with regard to
making a request for extradition to countries that do not extradite
their nationals.
Answer. Where an extradition treaty partner is permitted but not
required to extradite its nationals, the State Department might request
extradition of that country's national even if the relevant treaty
partner had generally denied such requests. We might make such a
request, for example, in an effort to encourage the country to exercise
discretion available under its domestic law. In addition, there are
provisions in the new treaties with countries that do not now extradite
their nationals obligating the country, upon the U.S. Government's
request, to prosecute their nationals if they are not extradited (see,
e.g., Art. 3(2) of Luxembourg Treaty and Art. 4(2) of Poland Treaty).
The State Department in consultation with the Justice Department might
in some cases seek extradition of a foreign national to trigger a
prosecution under one of these articles.
Question 8. Why was an annex to the Hong Kong Mutual Legal
Assistance Agreement necessary?
Answer. A general goal of U.S. MLAT negotiators is to maximize the
scope of assistance that is available under an MLAT. As a result, the
majority of our MLATs do not contain a dual criminality requirement.
However, Hong Kong's negotiators insisted upon the inclusion of a dual
criminality standard in Article 3 (Limitations on Providing Assistance)
. The purpose of the Annex is to ensure that our requests will be
executed, irrespective of dual criminality, in connection with a wide
range of offenses that are important to us but which may not have
identical counterparts in Hong Kong law. These offenses include, but
are not limited to: money laundering, fraud against the government, the
Foreign Corrupt Practices Act, racketeering, and criminal exploitation
of children. Somewhat similar annexes accompany several other MLATs,
including the MLAT with South Korea (which was approved by the Senate
August 2, 1996), the Cayman Islands (approved by the Senate Oct. 24,
1989), and with Switzerland (approved by the Senate June 21, 1976).
Question 9. Does the State Department find that the Hong Kong
Agreements provide precedent for treaty relationships with non-
sovereign entities? If so, please explain.
Answer. The State Department has viewed Hong Kong as a unique
situation in light of the autonomy of the Hong Kong criminal justice
system after reversion and the importance of our law enforcement
interests. The United States has a long history of direct involvement
with Hong Kong as a crown colony of Great Britain, including an active
law enforcement and prisoner transfer relationship which we have every
reason to continue. Hong Kong enters into each of these treaties with
the authorization of ``the sovereign government which is responsible
for [its] foreign affairs.'' In fact, both the United Kingdom and the
People's Republic of China approved the treaties through the Sino-
British Joint Liaison Group.
The upcoming reversion of Macau to the sovereignty of the PRC, in
December 1999, presents another case in which we will have to address
the need to continue an existing law enforcement relationship. As we
begin planning for reversion, if an arrangement similar to that used
for Hong Kong seems appropriate, we would consult with the Committee.
Question 10. Why do the mutual legal assistance treaties differ
with respect to the inclusion of standard forms in the treaty document?
Answer. We usually seek to include provisions for use of forms in
the treaty in order to ensure that evidence obtained under the MLAT
(especially bank and business records) will be admissible in U.S.
courts as provided by U.S. law (see 18 U.S.C. Sec. 3505). While these
forms could be developed by the Central Authorities during
implementation of the treaties, we have found it extremely helpful in
the implementation if the forms are agreed upon during the negotiations
and contained in the treaty document itself. Thus, three such forms are
found in MLATs with Antigua and Barbuda, Australia, Barbados, Brazil,
Dominica, Grenada, Israel, St. Kitts and Nevis, St. Lucia, St. Vincent
and the Grenadines, and Trinidad and Tobago; four forms are included in
the MLAT with the Czech Republic; and five forms are included in the
MLATs with Estonia, Lithuania, Luxembourg, and Poland. Sometimes the
negotiators view the forms as a strictly administrative matter, and
place them in an exchange of diplomatic notes or letters accompanying
the treaty (see, e.g., the Hong Kong Agreement). Sometimes, however,
our treaty partners have difficulty accepting the inclusion of forms
because they have no similar provisions in their domestic laws, and
hence cannot utilize them as we do. Only one of the MLATs before the
Senate, that with Venezuela, has no forms either included or attached.
Question 11. Why was an exchange of notes necessary with Australia
regarding the definition of ``essential interests''?
Answer. Article 3(1) (c) of the U.S.-Australia MLAT permits the
Central Authority of the Requested State to deny assistance ``if the
execution of the request would prejudice the security or essential
interests of the Requested State.'' Section 8 of Australia's Mutual
Assistance in Criminal Matters Act 1987 (the ``1987 Act''), which is
the Australian domestic law governing mutual legal assistance, contains
discretionary and mandatory bases for denial of mutual legal assistance
requests, including a discretionary limit on the provision of
assistance in death penalty cases. The exchange of notes, which was
sought by Australia, gives Australia the discretion to refuse requests
for assistance in accordance with its law by setting forth the
understanding of the Parties that the term ``essential interests''
includes the limitations on assistance codified in Australian domestic
law in Section 8 of the 1987 Act, as amended by the Mutual Assistance
in Criminal Matters Legislation Amendment Act 1996, for as long as the
law is in effect.
Australia also wanted the MLAT explicitly to allow it to deny
assistance in cases and investigations subject to the death penalty in
the United States. The United States opposed an explicit reference to
the death penalty in the MLAT. Because Australia's Mutual Assistance in
Criminal Matters Legislation Amendment Act 1996 amended the 1987 Act to
limit assistance in death penalty cases, the delegations agreed to
address this issue through the same exchange of notes. The Australian
law requires denial of assistance in cases where a person is charged
with or convicted of a death penalty offense unless the Australian
Attorney-General determines that assistance should be granted. It also
makes assistance discretionary in other cases where assistance may
result in the imposition of the death penalty even where there is no
charge or conviction of a death penalty offense at the time of the
request. The Government of Australia confirmed by diplomatic note that
it will not exercise the discretion to deny assistance in death penalty
cases where requests for evidence might be exculpatory and that it
would be unlikely to deny assistance at the pre-indictment phase, where
the Requesting State is investigating a crime for which no formal
charges have been filed but to which the death penalty could attach.
Question 12. Please clarify your hearing testimony for the record
regarding the Luxembourg MLAT. Specifically, what exchange of
information provisions does this treaty require that are not provided
for in the Luxembourg bilateral tax treaty? Please compare these
requirements to the U.S. model for exchange of information.
Answer. Because Luxembourg tax authorities are prohibited under
Luxembourg law from obtaining information from Luxembourg financial
institutions for their own tax investigations and proceedings,
Luxembourg was unable to agree to any provision in the U.S.-Luxembourg
Tax Convention which would obligate the Luxembourg competent authority
to obtain such information upon the request of U.S. competent authority
for use in U.S. tax investigations or proceedings. To allow U.S.
authorities another channel for obtaining information of Luxembourg
financial institutions, the exchange of notes makes clear that
information of Luxembourg financial institutions may be provided to
U.S. authorities only in accordance with the terms of the MLAT.
During the negotiation of the MLAT, care was taken to ensure that
the MLAT covers most, if not all, U.S. criminal tax offenses. Article 1
of the MLAT requires the parties to provide assistance for offenses
concerning value added taxes, sales taxes, excise taxes, customs
duties, and any other taxes agreed to by the parties through an
exchange of diplomatic notes. Assistance for any other tax offenses,
including income tax offenses, is limited to situations in which the
facts establish a reasonable suspicion of ``fiscal fraud,'' which is
defined as a criminal offense in which 11(a) the tax involved, either
as an absolute amount or in relation to an annual amount due, is
significant; and (b) the conduct involved constitutes a systematic
effort or a pattern of activity designed or tending to conceal
pertinent facts from or provide inaccurate facts to the tax
authorities.q`` This kind of detailed formulation is not typical of
U.S. MLATS, most of which do not contain limitations on the exchange of
criminal tax information.
Question 13. Please clarify how the MLAT with Israel will relate to
the bilateral tax treaty with Israel. Also, please clarify the universe
of fiscal information that is available under the two treaties.
Answer. The U.S.-Israel MLAT obliges each party to assist the other
in investigations, prosecutions, and proceedings related to criminal
matters. The 1975 U.S.-Israel Income Tax Convention (with First and
Second Protocols) provides for assistance in both civil and criminal
tax investigations Since there is some overlap between the Tax
Convention and the MLAT with respect to criminal tax matters, Israel
requested that the MLAT be accompanied by an exchange of diplomatic
notes that addresses the conditions under which assistance under the
MLAT is available in criminal tax cases. The Parties agreed in the
notes that in general the Tax Convention will be employed to obtain
assistance in criminal tax matters unless certain circumstances warrant
seeking assistance under the MLAT. Specifically, assistance under the
MLAT will not be requested for matters within the scope of the
provision for cooperation in the Tax Convention unless: (1) the form of
assistance requested is not within the framework of the Tax Convention;
or (2) the case concerned also includes additional serious non-tax
offenses.
The first exception provides for assistance under the MLAT in
criminal tax matters when the form of the requested assistance is not
covered by the Tax Convention. The MLAT provides for a wide variety of
forms of assistance, which are summarized in Article 2:
(a) taking the testimony or statements of persons;
(b) providing documents, records, and articles of evidence;
(c) serving documents;
(d) locating and identifying persons or items;
(e) transferring persons in custody for testimony or for other
assistance under the Treaty;
(f) executing requests for searches and seizures;
(g) assisting in proceedings related to the immobilization and
forfeiture of assets; and
(h) providing any other form of assistance not prohibited by the laws
of the requested state.
Article 29 of the Tax Convention, as amended, provides for the
exchange of ``information as is pertinent to carrying out the
provisions of [the Tax Convention] or preventing fraud or fiscal
evasion in relation to the taxes which are the subject of [the Tax
Convention].'' Both the MLAT and the Tax Convention could be used
(among other things) for the taking of testimony and obtaining
documents such as bank records. Assistance in connection with criminal
matters under the MLAT would be more expansive in some ways than
assistance under the Tax Convention. For example, the MLAT unlike the
Tax Convention could be used for assistance in service of documents or
a search and seizure. Since the forms of assistance provided in the
MLAT but not in the Tax Convention will now be available in criminal
tax cases, U.S. prosecutors in need of the service of a document or a
search and seizure in Israel may request such assistance under the
MLAT.
The second exception involves investigations or prosecutions in
which tax offenses are accompanied by other serious non-tax offenses.
Since the evidence needed for non-tax offenses would not be obtainable
under the Tax Convention, the Parties agreed that it would be more
efficient for the prosecutor to request all of the evidence needed, for
both the tax and non-tax offenses, in one request under the MLAT.
Question 14. What is the effect of the Protocol to the Treaty with
St. Vincent and the Grenadines?
Answer. The Protocol to the MLAT with St. Vincent and the
Grenadines was sought by the delegation of St. Vincent and the
Grenadines as a restatement of one aspect of the scope of the treaty.
The Protocol, like the exchanges of diplomatic notes in the MLATs with
St. Kitts and Nevis and Antigua and Barbuda, reflects the Parties'
agreement that Article 1 of the MLAT excludes assistance for civil and
administrative income tax matters that are unrelated to any criminal
matter. Since our MLATs do not in any event apply to civil or
administrative matters unrelated to any criminal matter, the Protocol
does not alter or affect the scope of the MLAT.
Annex 1 (Relates to Sen. Helms Question 1)
------------------------------------------------------------------------
U.S. Mutal Legal Assistance # Cases-Incoming # Cases-Outgoing
Treaty Requests (FY 1998) Requests (FY 1998)
------------------------------------------------------------------------
Argentina....................... 47 0
Austria......................... 14 7
The Bahamas..................... 0 17
Canada.......................... 24 75
The Cayman Islands.............. 2 19
Hungary......................... 54 3
Italy........................... 27 9
Jamaica......................... 1 1
South Korea..................... 2 3
Mexico.......................... 76 29
Morocco......................... 0 0
The Netherlands................. 22 17
Panama.......................... 15 6
The Philippines................. 1 6
Spain........................... 28 1
Switzerland..................... 25 37
Thailand........................ 3 5
Turkey.......................... 22 0
The United Kingdom.............. 53 47
Uruguay......................... 0 2
------------------------------------------------------------------------
Responses of the Department of State to Questions Asked by Senator
Biden
Question 1. In cases where the United States has an existing
extradition treaty in place, how many people have been extradited
between the two countries within the last two years (this question
applies only to those countries with which an extradition treaty was
the subject of this hearing)?
Answer. Attached at Annex 1 are charts showing recent extraditions
to and from the countries with extradition treaties pending before the
Committee. These numbers do not include the significant number of cases
that began with extradition requests, but concluded with the fugitives
being surrendered by means other than formal extradition, such as
expulsion or deportation. For example, in 1997 and 1998, Mexico
deported to the U.S. 11 fugitives in addition to those it extradited
here.
It is anticipated that the number of extraditions will increase
once these new, modern treaties are in force, primarily because in many
cases the new treaties, which are all based on dual criminality, will
replace antiquated list treaties that do not include serious crimes
such as money laundering, racketeering and alien smuggling.
Question 2. Please describe the Department of Justice's view of the
state of the law regarding evidence gathered in a search involving
property owned and occupied by a U.S. citizen living in the Requested
State, and whether that evidence would then be admissible in a U.S.
court.
Answer. We understand this question to be directed at searches
conducted outside of United States at the request of the United States
or in an investigation to which the United States is a joint
participant. In those situations, the current state of the law is
reflected in a Ninth Circuit decision. In United States v. Barona, 56
F.3d 1087 (9th Cir. 1995), cert. denied sub nom. Bennett v. United
States, 116 S.Ct. 813 (1996), the United States participated with
foreign officials in wiretapping the telephones of certain American
citizen in Europe under investigation for narcotics offenses. The
interceptions complied with foreign law, but were not conducted
pursuant to warrants issued under standards set out in the federal
wiretap statute. The Ninth Circuit upheld the convictions against a
claim of a Fourth Amendment violation.
The Court ruled as an initial matter that the U.S. domestic wiretap
law had no extraterritorial effect and did not govern the searches. It
also ruled that the warrant requirement of the Fourth Amendment is
impracticable in the context of foreign searches. The Court concluded,
however, that the reasonableness requirement of the Fourth Amendment
does apply because the wiretaps were the result of a ``joint venture''
search. It then held that a foreign search is reasonable if it was
conducted in accordance with the law of the foreign state in which the
search occurred. The court therefore rejected the defendants' Fourth
Amendment claim, and upheld their convictions. This holding is
consistent with the position that the government had previously argued
in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990); there, the
Solicitor General urged that if the Fourth Amendment applies extra
territorially it should only require that the foreign search be
reasonable, but not pursuant to a Fourth Amendment warrant, because of
practical constraints and the difficult questions of sovereignty and
authority. Attached at Annex 2 is a copy of a February 3, 1998, letter
from the Department of Justice Office of Legislative Affairs to the
Honorable Henry J. Hyde, Chairman, House Committee on the Judiciary,
which discusses this issue in detail.
U.S.-Mexico Extradition Protocol (T.Doc. 105-46)
Question 1. Why was it necessary to agree that the mechanism
established by the Protocol will be reserved for ``exceptional
situations'', as explained in the Technical Analysis at page 4?
Did the negotiators have a common understanding as to what
constitutes an exceptional situation?
Answer. The temporary surrender mechanism under the U.S.-Mexico
Extradition Protocol is generally the same as those in numerous other
recent U.S. extradition treaties, and the intention is that it will be
used in the same manner as the temporary surrender provisions in those
other treaties. The statement in the Technical Analysis is not intended
to reflect any different understanding, but merely to acknowledge the
common practice -- i.e., that temporary surrender is virtually always
reserved for ``exceptional situations.'' Given that temporary surrender
is a complex process, potentially involving the interaction of federal
and state judicial and prison authorities, only certain important cases
would merit the expenditure of resources entailed. In fact, there have
been very few cases to date under U.S. extradition treaties generally
in which temporary surrender has been sought.
The negotiators of this Protocol did indeed have a common
understanding of the type of case that would trigger the temporary
surrender mechanism. As noted at pages 8-9 of the statement of Deputy
Assistant Attorney General Mark Richard before the Senate Foreign
Relations Committee, an important impetus for the Protocol was the
inability of U.S. and Mexican authorities under the 1978 extradition
treaty to effect the temporary surrender to New York of a dangerous
felon (Luis Martinez) wanted for prosecution there on multiple murder
charges. Arranging Martinez' trial in New York, before the completion
of a seven-year Mexican prison sentence he was serving, was urgent
because of the imminent loss of the only eyewitness to the crimes.
(Martinez was charged with critically wounding that witness.) U.S. and
Mexican negotiators agreed that the Martinez case exemplified the
circumstances in which temporary surrender is appropriate -- i.e.,
those in which the interests of justice would be thwarted by any delay
in prosecution.
Question 2. Please provide the text of the extradition treaty
currently in force.
Answer. A copy is attached at Annex 3.
U.S.-India Extradition Treaty (T.Doc. 105-30)
Question 1. What is the legal status of letters exchanged on June
25, 1997 in connection with the treaty?
Answer. The letters represent the authoritative understanding and
interpretation of the governments of the United States and India that a
Requesting State shall make an extradition request contemplating
prosecution or punishment based on laws and procedures other than the
ordinary criminal laws and procedures of the Requesting State only
after consultation with and upon the agreement of the Requested State.
While the letters do not have the legally binding status of the treaty
itself, they represent a clear and authoritative record of how the
United States and India interpret and intend to implement the relevant
treaty provisions.
Question 2. What are the limitations on the rights of defendants
that were contained in India's Terrorist and Disruptive (Prevention)
Act?
Answer. India's Terrorist and Disruptive (Prevention) Act (TADA)
limited the rights of a defendant accorded under ordinary Indian
criminal law in a number of important respects. These include making it
more difficult for the accused to be released on bail, permitting a
defendant to be detained for a year before being charged, providing for
all trial proceedings to be conducted in camera and for the court to
sit at any place (e.g., including a jail), permitting the court to keep
secret the identity of witnesses, allowing the admissibility of
confessions to the police, reversing the burden of proof in certain
situations, and limiting the right to appeal.
Question 3. Has the Terrorist and Disruptive (Prevention) Act
lapsed by its terms or was it repealed?
Answer. TADA lapsed by its own terms on May 23, 1995, and has not
been replaced. It continues to have effect, however, with respect to
cases that were under investigation and trial as of that date.
Question 4. Does the Executive Branch intend to deny extradition in
the event a request is made involving a case under that Act or any
similar law?
Answer. While we cannot rule out the possibility that a request
under laws of this type might merit serious consideration, we do not
anticipate being presented with such a case, at least according to the
information currently available to us with respect to India. We
therefore would not expect to extradite to India pursuant to TADA or a
similar law.
U.S.-Trinidad & Tobago Extradition Treaty (T. Doc. 105-21)
Question 1. Is an ``indictable offense'' as used in Article 2(1)
equivalent to a felony in U.S. law?
Answer. Yes, we understand that an indictable offense in Trinidad
and Tobago is roughly equivalent to a felony in U.S. law. Trinidad has
several categories of offenses, with indictable offenses being
particularly serious offenses triable before a high court judge and
jury. As reflected in Article 2(1), offenses are extraditable under the
treaty only if they are indictable offenses in Trinidad and punishable
by more than one year in the United States.
U.S.-Luxembourg Extradition Treaty (T. Doc. 105-10)
Question 1. Does Article 2(1) (a) include aiding and abetting an
offense?
Answer. Yes. During the negotiations of the U.S.-Luxembourg
extradition treaty, the Luxembourg delegation explained that under
Article 66 of Luxembourg's Criminal code, a ``co-author'' of an offense
is punishable to the same extent as the principal. In addition, under
Article 69 of Luxembourg's Criminal Code, one convicted of being an
accomplice or accessory to the crime is punishable by a sentence ``one
grade less than that which could be imposed on the principal.'' Our
delegation concluded that these provisions of Luxembourg domestic law
cover the same liability as 18 U.S.C. Sec. 2.
Question 2. The Technical Analysis related to Article 2(6) states
that the Secretary of State makes the decision whether to grant or deny
extradition in case where the prosecution is barred by the statute of
limitations in the Requested State.
Please provide the legal authority for the Secretary to make
this decision.
Why would this determination not be one for the court to
make?
Answer. Article 2(6) of the Luxembourg extradition treaty states
that extradition may be denied if prosecution is barred by the statute
of limitations in the Requested State. In this article, like others
where discretion is vested in the Requested State, it is appropriate
for this decision to be vested in the Secretary of State. Under U.S.
law, the Secretary of State, rather than a court, would ultimately
exercise discretion as to whether extradition would be granted or
denied. See 18 U.S.C. Sec. Sec. 3184, 3186. Although a court might
address the threshold factual question of whether the U.S. statute of
limitations has expired, this treaty provision addresses the sovereign
act of granting or denying extradition. In this connection, we note
that U.S. extradition treaties increasingly do not include the statute
of limitations of the Requested State as a ground for denial of
extradition, and that we expect that, barring unusual circumstances,
the United States would usually extradite if the only bar to
extradition were the statute of limitations in this country as
Requested State.
Question 3. The Technical Analysis with regard to Article 5(3)
states that the parties agreed that the drug trafficking offense, crime
of violence, or other crime, must be ``particularly serious'' to fall
within this paragraph.
Why was this agreement between the parties necessary?
Is not a drug trafficking offense ipso facto a
``particularly serious'' offense?
Answer. Article 5 on ``Fiscal Offenses'' resulted from extensive
negotiations as to whether tax offenses should be extraditable under
the U.S.-Luxembourg extradition treaty. Luxembourg wanted to exclude
tax offenses from the scope of the treaty altogether. In deference to
U.S. concerns, the language ultimately adopted permits (but does not
require) denial of extradition for fiscal offenses; which are defined
in Art. 5(2) as offenses related to reporting and payment of taxes or
customs duties or relating to currency exchange control. Article 5(3)
also specifically states that the Requested State may consider an
offense that falls within the definition of Art. 5(2) not to be a
fiscal offense if the offense relates to drug trafficking, a crime of
violence, or other criminal conduct of a particularly serious nature.
(In short, the U.S. delegation persuaded Luxembourg to make short, the
U.S. delegation persuaded Luxembourg to make denial of fiscal offenses
discretionary rather than mandatory, and to consider foregoing denial
where the fiscal offense is related to a serious crime.)
Answer. The U.S. believes that drug trafficking is inherently a
serious offense. Nevertheless, the technical analysis reflects
recognition by the U.S. delegation that Luxembourg probably would not
apply subparagraph (3) if the tax, customs, or currency exchange
offense in the case related to a crime (including a drug crime) that
Luxembourg did not consider particularly serious.
Question 4. Who will represent the United States in cases in
Luxembourg courts? Who will pay for such representation?
Answer. Luxembourg's domestic law does not contemplate
``representation'' of the United States by Luxembourg in its courts in
the manner in which many of our other extradition partners represent
the United States. Instead, U.S. extradition requests will be presented
in writing by the Luxembourg Ministry of Justice to an appropriate
Luxembourg court with a Justice Ministry recommendation on the
disposition of the request. It is therefore not contemplated that any
costs for representation will be incurred by the United States.
U.S.-Poland Extradition Treaty (T. Doc. 105-14)
Question 1. Please describe the ``association to commit offenses''
under the law of Poland (referred to in Art. 2(2)).
Is it similar to accomplice liability in U.S. law?
Does Polish law provide for conspiracy liability in any
respect?
Answer. Polish law does not have a general conspiracy statute
similar to 18 U.S.C. Sec. 371. Article 123 of the Polish Penal Code
only penalizes conspiracies in national security cases, i.e.,
conspiracies ``. . . to deprive the Republic of Poland of its
independence, to detach a portion of its territory, to overthrow by
force its system or to weaken its defenses generally. . .''
Answer. The closest Polish analogue to our general conspiracy
offense appears to be ``association to commit offenses'' under Article
276 of the Polish Penal Code. This statute reads:
``1. Whoever participates in an association having for its purpose
an offense shall be subject to the penalty of deprivation of
liberty for from 6 months to 5 years.
``2. If the association has an armed character, the perpetrator
shall be subject to the penalty of deprivation of liberty for
from 1 to 8 years.
``3. Whoever establishes an association specified in paragraph 1 or
paragraph 2 or directs it shall be subject to the penalty of
deprivation of liberty for from 2 to 10 years.
Because the crimes of conspiracy in the U.S. and association to
commit offenses in Poland are not identical, Article 2(2) of the Treaty
provides that a conspiracy in violation of U.S. law and an association
to commit offenses under Polish law are extraditable if the underlying
crime is one for which dual criminality exists, and does not require
dual criminality for the conspiracy charge itself or the association to
commit offenses charge itself.
Question 2. The Technical Analysis regarding Article 8 states that
the ``article indicates that the Requested State should not deny the
request if the statute of limitations expires after the Requested State
receives the request.''
By its terms, the Article provides no such indication. In
what manner does the article so indicate? Is this assertion
based on the negotiating record?
Answer. It is accurate that Article 8 itself does not contain the
quoted language. The technical analysis should have referred to the
understanding reached between the negotiators rather than the article
itself.
U.S.-Zimbabwe Extradition Treaty (T.Doc 105-33)
Question 1. The Department of State Country Reports on Human Rights
Practices for 1997 states that in Zimbabwe the ``Government still
enjoys a wide range of legal powers under the Official Secrets Act and
the Law and Order Maintenance Act (LOMA) .'' (p.386)
Please summarize the legal powers that the government has
under these laws.
Are there provisions of these laws that would not meet the
dual criminality standard?
Answer. The Law and Order Maintenance Act (LOMA) was promulgated by
the government of then-Southern Rhodesia in 1960 and was retained by
the new government after Zimbabwe gained independence in 1980. We
understand that the Government of Zimbabwe is considering repealing and
replacing the LOMA but that no final decisions have been made by the
Zimbabwean parliament.
The LOMA gives the Government of Zimbabwe extraordinary powers to
regulate and/or prohibit certain public processions, gatherings and
meetings, and to prohibit the printing, publication, distribution, sale
or reproduction of publications that the President determines are
likely to be contrary to the interests of public safety or security. It
authorizes the Postmaster-General to detain and examine packages
suspected to contain any prohibited publication. The LOMA also creates
various other security-related crimes such as interfering with
essential services, undermining the authority of the police or of the
President, making subversive statements, and participation in terrorism
or sabotage.
The Official Secrets Act (OSA) dates back to 1970 and gives the
Government broad powers to proscribe the disclosure of information
which might be useful to an enemy for purposes prejudicial to the
safety or interests of Zimbabwe. It prohibits obtaining or disclosing
official secrets, including information relating to or used in a
``prohibited place,'' which includes defense installations and other
places determined by the President. Unauthorized persons are prohibited
from entering, creating sketches, plans, or models regarding, and, upon
a request to disperse, loitering in the vicinity of such places. The
OSA also criminalizes the failure to report known information on anyone
who intends to violate the act.
Many of the offenses thus created under LOMA and OSA would not be
extraditable under the U.S.-Zimbabwe Treaty because they would not be
offenses under U.S. law. Article 2 of the Treaty defines extraditable
offenses as those that are ``punishable under the laws in both
Contracting States by deprivation of liberty for a period of more than
one year or by a more severe penalty.'' In determining whether this
requirement is satisfied in a particular case, U.S. courts look to the
underlying act upon which the charge of the requesting state is based.
The dual criminality standard is met if this act is also proscribed by
a law of the United States. See, e.g., Demjanjuk v. Petrovsky, 776 F.2d
571, 579 (1985), cert. denied 475 U.S. 1016 (1986).
If the Government of Zimbabwe were to request the extradition of a
person for an offense under the LOMA or OSA, the United States would
review the underlying act upon which the charge or conviction was
based. While some offenses under LOMA and OSA may also be punishable
under U.S. law and thus be found to be extraditable, many others would
not be. For instance, certain offenses under LOMA might also violate
U.S. gun control laws, and some offenses involving prohibited
publication or disclosure of information could be punishable under our
national security laws covering classified information. On the other
hand, the broad reach of outlawed activity that we would consider to be
protected by the First Amendment, including e.g., constraints on
publication and public gatherings and prohibitions on undermining the
authority of the police or the President, means that many offenses
under these Acts would not satisfy dual criminality and would not be
extraditable. Finally, we note that many of the offenses identified in
this statute appear to be punishable by less than one year's
imprisonment and would therefore not in themselves be extraditable.
Apart from the dual criminality limitations, the Zimbabwe treaty,
like all of the other treaties before the Committee, also contains
exceptions to the obligation to extradite for political offenses and
politically motivated prosecutions.
Question 2. The Human Rights Report also states that ``well over 90
percent of defendants in magistrates' courts go unrepresented,'' and
that ``(m)agistrates, who are part of the civil service rather than the
judiciary, hear the vast majority of cases and are sometimes subject to
political pressure.'' (p.387)
What is the scope of the jurisdiction that magistrates have?
Do they hear criminal cases involving deprivation of liberty
for a period of more than one year or by a more severe penalty?
Answer. Zimbabwe's Magistrates Court Act establishes ordinary,
senior, provincial, and regional magistrates with varying types of
jurisdiction, ranging from the authority to impose punishments not
exceeding one year to the authority to impose punishments not exceeding
seven years of imprisonment. The magistrates courts do not have
jurisdiction over murder and treason cases or any capital crime. Only
the regional magistrates courts have jurisdiction over serious rape
cases.
Any defendant convicted by a magistrates court has the right to
appeal to the High Court against his sentence and the right to appeal
to the Supreme Court against his conviction. In addition, the High
Court automatically reviews magistrates' sentences of unrepresented
individuals who have been sentenced to over six months in prison or
fined over one thousand dollars. The High Court also reviews, upon
request, similar sentences of corporate defendants and those
represented by counsel at trial, as well as lesser sentences of
unrepresented individuals. Sentences of unrepresented individuals by
ordinary, senior or provincial magistrates courts to more than three
but less than six months in prison or to fines of more than five
hundred but less than one thousand dollars that are not otherwise
reviewed by the High Court are automatically reviewed by a regional
magistrate, who may then refer the case to the High Court for review.
u.s.- zimbabwe extradition treaty (t.doc 105-33)
Question 3. How many fugitives from U.S. courts are currently in
Zimbabwe?
Please provide information about (a) what criminal charges
they face; (b) the sentence they have received (if applicable);
and (c) where these charges were pending or sentences (if
applicable) were imposed.
Answer. The Justice Department does not currently have any open
federal cases involving fugitives it knows are in Zimbabwe. This,
however, does not mean that there are no U.S. fugitives in that country
and does not foreclose the possibility that extradition requests will
be made after the treaty enters into force. With the growth of
narcotics trafficking and other transnational crime in the region we
expect more cases to arise in the future for which there is U.S.
federal jurisdiction. Since the U.S. currently has no extradition
treaty in force with Zimbabwe, federal and state prosecutors and
investigators interested in seeking extradition from Zimbabwe would
probably elect not to submit extradition requests to the Department of
Justice or Department of State, so we would have no record of these
fugitives.
U.S.-Cyprus Extradition Treaty (T. Doc. 105-16)
Question 1. Article 8(6) provides that in the case of a person
found guilty in absentia, the executive authority may refuse
extradition unless ``the Requesting State provides the Requested State
with information which demonstrates that the person was afforded an
adequate opportunity to present a defense.''
Does this therefore obligate the Requested State to
extradite if the requisite information is provided?
Would the Requested State have an obligation to extradite if
the Requesting State provided that the defendant will be
afforded an adequate opportunity to present a defense (i.e., if
the jurisdiction in the Requesting State provides assurances
that a new trial will be held)?
Answer. U.S. courts generally require that if the person sought for
extradition was convicted in absentia in the Requesting State, the
person is treated as one merely charged with an offense purpose of
considering extradition. In addition, in in absentia cases the State
Department typically requires the foreign state to agree to give the
person sought a new trial after extradition (see, e.g., Gallina v.
Fraser, 278 F.2d 77, 78 (2d Cir.), cert. denied, 364 U.S. 851, rehear'g
denied, 364 U.S. 906 (1960)) except where the person sought had a full
opportunity to defend himself on the merits during the in absentia
proceedings. For example, the Secretary of State has extradited
fugitives convicted in absentia who knew of all proceedings against
them and were represented by counsel of their own choosing at those
proceedings.
The language of Article 8(6) of the Cyprus Extradition Treaty
reflects this exception. Under the language of this provision, the
Requested State would not be permitted to deny extradition based on the
in absentia nature of the conviction if the person sought had an
adequate opportunity to present a defense during the proceedings.
However, it is not necessarily enough that the Requesting State provide
information on the issue; the Requested State must assess the
information and be convinced that it meets the standards in the treaty.
U.S.-Spain Extradition Supplementary Treaty (T. Doc. 105-15)
Question 1. Please provide the current extradition treaty and
supplementary treaties or protocols.
Answer. A copy is attached as Annex 4.
U.S.-Hong Kong Prisoner Transfer Treaty (T. Doc. 105-7)
Question 1. How many prisoner transfers with Hong Kong were carried
out in the past three years under the previous prisoner transfer
treaty?
Answer. In 1995-1997, one United States national was transferred
from Hong Kong to the United States, and one Hong Kong resident was
transferred from the United States to Hong Kong.
Question 2. Please provide the applicable Justice Department
regulations or guidelines relevant to the transfer of prisoners to
other countries pursuant to prisoner transfer treaties and 18 U.S.C.
Section 4100 et seq.
Answer. Attached at Annex 5 are the Justice Department Guidelines
for Administration of Prisoner Transfer Treaties and Implementation of
18 U.S.C. Sec. Sec. 4100 et seq. These guidelines, which were written
in February 1989, are currently being revised.
Question 3. Will the diplomatic channel for this treaty be the
government of Hong Kong?
Answer. Yes, we understand the reference in Article 12 to use of
the diplomatic channel for settlement of disputes to refer to
communications between the United States and Hong Kong, the two
signatories to the treaty. This reflects the fact that the issue of
transfer of prisoners falls within the autonomy of Hong Kong under the
Joint Declaration and Basic Law. It is also consistent with the
designation of Central Authorities in the United States and Hong Kong
for implementation of the treaty in Article 3.
Question 4. Please describe how provisions analogous to Article
8(3) in existing prisoner transfer treaties work in practice.
How is a sentence ``adapted''?
Is the transferring Party notified when a sentence is so
adapted?
Answer. Adaptation of sentence (or ``conversion'' of sentence, as
it is termed in the Council of Europe Convention on the Transfer of
Sentenced Persons) occurs when a prisoner is brought before a court in
the receiving country and given a new sentence. Adaptation of sentence
also occurs in the absence of court ruling when the receiving country
advises us that its laws will not permit the prisoner to serve a
sentence as lengthy as was imposed in the United States.
In the few cases where adaptation has occurred, the process has
worked as follows: our approval of an outgoing prisoner transfer is
considered to be a preliminary approval. After we have given
preliminary approval, the receiving country advises us, based on the
limits of its law and its experience in similar cases, what new
sentence the prisoner is likely to receive after transfer. If there is
a substantial variance between the sentence which the prisoner received
in the United States and the sentence which he or she is expected to
serve after transfer, the case will be reconsidered within the
Department of Justice. In most cases (particularly where the disparity
is not extreme) we decide to go forward with the transfer, reasoning
that the person has already been determined to be a good candidate for
transfer by both countries and understanding that in many cases it is
appropriate to defer to the standards of the receiving country. After
the transfer has taken place and the new sentence has been set, the
receiving country advises us what sentence will be served.
Annex 1 (Relates to Sen. Biden General Question 1)
------------------------------------------------------------------------
Extraditions TO the U.S.
---------------------------------------
COUNTRY Cumulative: 1997- Cumulative: 1990-
98 98
------------------------------------------------------------------------
Antigua & Barbuda............... 0 2
Dominica........................ 0 2
Grenada......................... 0 1
St. Kitts & Nevis............... 0 0
St. Lucia....................... 0 0
St. Vincent & The Grenadines.... 0 0
Argintina....................... 5 15
Austria......................... 1 13
Barbados........................ 0 7
Cyprus.......................... 2 4
France.......................... 4 35
India........................... 1 3
Luxembourg...................... 0 5
Mexico.......................... 21 61
Poland.......................... 0 3
Spain........................... 4 32
Trinidad & Tobago\1\............ 0 4
Cumulative Totals............. 38 187
------------------------------------------------------------------------
------------------------------------------------------------------------
Extraditions FROM the U.S.
---------------------------------------
COUNTRY Cumulative: 1997- Cumulative: 1990-
98 98
------------------------------------------------------------------------
Antigua & Barbuda............... 0 0
Dominica\1\..................... 0 0
Grenada......................... 0 0
St. Kitts & Nevis............... 0 1
St. Lucia....................... 0 0
St. Vincent & The Grenadines.... 0 0
Argintina....................... 2 14
Austria......................... 2 14
Barbados........................ 0 2
Cyprus.......................... 0 0
France.......................... 0 19
India........................... 3 3
Luxembourg...................... 0 1
Mexico.......................... 26 73
Poland.......................... 0 1
Spain........................... 4 5
Trinidad & Tobago\2\............ 0 0
Cumulative Totals............. 37 133
------------------------------------------------------------------------
\1\extradition in 1984; None since that time.
\2\extradition in 1987 and 1 in 1988; None since that time.
Statistics derived from Justice (OIA) and State (LEI) Records Numbers
include ONLY extraditions and waivers. Does not include deportation or
expulsion transfers.
Annex 2 (Relates to Sen. Biden General Question 2)
U.S. Department of Justice,
Office of Legislative Affairs,
February 3, 1998.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
U.S. House of Representatives,
Washington, DC.
Dear Mr. Chairman: Thank you for your letter on behalf of
Congressman Bob Livingston, forwarding a letter from Brian Leighton on
behalf of Richard Horn, concerning the Fourth Amendment rights of
citizens overseas and a lawsuit in which Mr. Leighton represents Mr.
Horn. You have requested information concerning the Department of
Justice's involvement with regard to Fourth Amendment protections and
related court cases.
Mr. Leighton's letter to Congressman Livingston refers to the only
current litigation of which we are aware involving the applicability of
the Fourth Amendment to U.S. citizens overseas. The case was brought by
Mr. Horn, a Drug Enforcement Administration agent, against other U.S.
government officials in their individual capacities under Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971). Mr. Horn alleged that, while
he was stationed overseas, other employees of the U.S. government
conducted electronic surveillance on him in his government-leased
quarters. The district court denied the defendants' motion for summary
judgment on qualified immunity grounds (the court's opinion is sealed).
In his letter to Congressman Livingston, Mr. Leighton expressed concern
that the district court's decision was being appealed. Although a
protective notice of appeal was filed in the ordinary course, the
Department of Justice has determined not to pursue an appeal at this
time, and the case remains in the trial court for further proceedings.
While the Bivens case was pending, Mr. Horn filed another action,
styled as a class action, against the Secretary of State, the Director
of Central Intelligence and the Director of the National Security
Agency, in their official capacities, alleging that these agencies have
a pattern and practice of conducting electronic surveillance against
other employees of the U.S. government overseas. This latter case has
been consolidated with the Bivens case.
Both cases are now proceeding in the district court. As you know,
we are constrained in our ability to comment further on specific
matters in litigation.
More generally, the Department of Justice has expressed its views
concerning the applicability of the Fourth Amendment abroad in briefs
filed in some recent criminal cases in the Supreme Court. In the
government's brief in United States v. Verdugo-Urquidez, 494 U.S. 259
(1990), a case involving a search abroad of a foreign national by both
American and foreign officials, the United States took the position
(Government's Brief at 17) that ``[t]he Constitution does not apply
across the board to every person and in every setting overseas''
(emphasis in original). Instead, following the suggestion of Justice
Harlan's concurring opinion in Reid v. Covert, 354 U.S. 1 (1957), the
government advocated case-by-case judgments, based on the application
of three general factors: (1) whether the United States exercises
significant sovereignty in the particular territory; (2) the nature of
the underlying right, that is, whether the right can readily be applied
in a foreign setting; and (3) the relationship of the claimant to the
United States (Brief at 17-23).
The government argued in the Verdugo case that ``the text and
purposes of the Fourth Amendment suggest that the underlying right has
little, if any, extraterritorial force, particularly when urged on
behalf of a foreign national'' (Brief at 23). The government further
took the general view that, even if the Fourth Amendment applied extra
territorially, it required only reasonableness; imposing the warrant
requirement on overseas searches and seizures would be impracticable
(Brief at 31-40). ``Because of the unusual practical constraints, as
well as difficult questions of sovereignty and authority, agents
conducting investigations overseas should at most be bound by the more
flexible Fourth Amendment requirement of reasonableness'' (Brief at
39).
The Supreme Court agreed with the government's argument in Verdugo
that the Fourth Amendment does not apply to foreign searches of foreign
nationals, and it held that as to a search in Mexico of a citizen and
resident of Mexico, ``the Fourth Amendment has no application.'' (494
U.S. at 274-275.
In another case, United States v. Barona, 56 F.3d 1087 (9th Cir.
1995), cert. denied, Bennett v. United States, 116 S. Ct. 813, 1996),
the United States had participated with Danish and Italian officials in
wiretapping the defendants' telephones in Europe. Three of the
defendants were American citizens. The court of appeals upheld all the
convictions against a claim of a Fourth Amendment violation, and the
United States opposed certiorari. The government's brief in opposition
argued that the ``special needs'' that exist in the context of foreign
searches make the warrant requirement impracticable in that setting;
rather, the United States asserted, ``a foreign `joint venture' search
of an American citizen that conforms to the requirements of foreign law
should be accepted as reasonable within the meaning of the Fourth
Amendment'' (Brief in Opposition at 10).
I appreciate the inquiry on behalf of Mr. Leighton and his client.
Do not hesitate to contact me should you, your office, or a constituent
need additional information or assistance.
Sincerely,
Andrew Fois,
Assistant Attorney General.
______
Annex 3 (Relates to Sen. Biden Mexico Extradition Protocol Question 2)
Treaties and Other International Acts Series 9656
EXTRADITION
Treaty Between the
United States of America and Mexico
English Only
Signed at Mexico City May 4, 1978
MEXICO
Extradition
Treaty signed at Mexico City May 4, 1978;
Ratification advised by the Senate of the United States of America
November 30, 1979;
Ratified by the President of the United States of America December 13,
1979;
Ratified by Mexico January 31, 1979;
Ratifications exchanged at Washington January 25, 1980;
Proclaimed by the President of the United States of America February 6,
1980;
Entered into force January 25, 1980
__________
By the President of the United States of America
A PROCLAMATION
Considering that:
The Extradition Treaty between the United States of America and the
United Mexican States was signed at Mexico City on May 4, 1978, the
text of which, in the English and Spanish languages, is hereto annexed;
The Senate of the United States of America by its resolution of
November 30, 1979, two-thirds of the Senators present concurring
therein, gave its advice and consent to ratification of the Treaty;
The Treaty was ratified by the President of the United States of
America on December 13, 1979, in pursuance of the advice and consent of
the Senate, and was duly ratified on the part of the United Mexican
States;
It is provided in Article 23 of the Treaty that the Treaty shall
enter into force on the date of exchange of the instruments of
ratification;
The instruments of ratification of the Treaty were exchanged at
Washington on January 25, 1980; and accordingly the Treaty entered into
force on that date;
Now, Therefore, I, Jimmy Carter, President of the United States of
America, proclaim and make public the Treaty, to the end that it be
observed and fulfilled with good faith on and after January 25, 198O,
by the United States of America and by the citizens of the United
States of America and all other persons subject to the jurisdiction
thereof.
In testimony thereof, I have signed this proclamation and caused
the Seal of the United States of America to be affixed.
Done at the city of Washington this sixth day of February in the year
of our Lord one thousand nine hundred eighty and of the
Independence of the United States of America the two
hundred fourth.
[SEAL]
Jimmy Carter
By the President:
Cyrus Vance
Secretary of State
EXTRADITION TREATY BETWEEN
THE UNITED STATES OF AMERICA AND
THE UNITED MEXICAN STATES
The Government of the United States of America and the Government
of the United Mexican States;
Desiring to cooperate more closely in the fight against crime and,
to this end, to mutually render better assistance in matters of
extradition;
Have agreed as follows:
ARTICLE 1
Obligation to Extradite
1. - The Contracting Parties agree to mutually extradite, subject
to the provisions of this Treaty, persons who the competent authorities
of the requesting Party have charged with an offense or have found
guilty of committing an offense, or are wanted by said authorities to
complete a judicially pronounced penalty of deprivation of liberty for
an offense committed within the territory of the requesting Party.
2. - For an offense committed outside the territory of the
requesting Party, the requested Party shall grant extradition if:
a) Its laws would provide for the punishment of such offense
committed in similar circumstances, or
b) the person sought is a national of the requesting Party, and that
Party has jurisdiction under its own laws to try that
person.
ARTICLE 2
Extraditable Offenses
1. - Extradition shall take place, subject to this Treaty, for
willful acts which fall within any of the clauses of the Appendix and
are punishable in accordance with the laws of both contracting Parties
by deprivation of liberty the maximum of which shall not be less than
one year.
2. - If extradition is requested for the execution of a sentence,
there shall be the additional requirement that the part of the sentence
remaining to be served shall not be less than six months.
3. - Extradition shall also be granted for willful acts which,
although not being included in the Appendix, are punishable, in
accordance with the federal laws of both contracting Parties, by a
deprivation of liberty the maximum of which shall not be less than one
year.
4. - Subject to the conditions established in paragraphs 1, 2 and
3, extradition shall also be granted:
a) For the attempt to commit an offense; conspiracy to commit an
offense; or the participation in the execution of an
offense; or
b) When, for the purpose of granting jurisdiction to the United
States government, transportation of persons or property,
the use of the mail or other means of carrying out
interstate or foreign commerce, is also an element of the
offense.
ARTICLE 3
Evidence Required
Extradition shall be granted only if the evidence be found
sufficient, according to the laws of the requested Party, either to
justify the committal for trial of the person sought if the offense of
which he has been accused had been committed in that place or to prove
that he is the person convicted by the courts of the requesting Party.
ARTICLE 4
Territorial Application
1. - For the Purposes of this Treaty, the territory of a
Contracting Party shall include all the territory under the
jurisdiction of that Contracting Party, including airspace and
territorial waters and vessels and aircraft registered in that
Contracting Party if any such aircraft is in flight when the offense is
committed.
2. - For the purposes of this Treaty, an aircraft shall be
considered to be in flight at any time from the moment when all its
external doors are closed following the embarkation until the moment
when any such door is opened for disembarkation.
ARTICLE 5
Politiclal and Military Offenses
1. - Extradition shall not be granted when the offense for which it
is requested is political or of a political character.
If any question arises as to the application of the foregoing
paragraph, the Executive authority of the requested Party shall decide.
2. - For the purpose of this Treaty, the following offenses shall
not be considered to be offenses included in paragraph 1:
a) The murder or other willful crime against the life or physical
integrity of a Head of State or Head of Government or of
his family, including attempts to commit such an offense.
b) An offense which the Contracting Parties may have the obligation
to prosecute by reason of a multilateral inter national
agreement.
3. - Extradition shall not be granted when the offense for which
extradition is requested is a purely military offense.
ARTICLE 6
Non bis in idem
Extradition shall not be granted when the person sought has been
prosecuted or has been tried and convicted or acquitted by the
requested Party for the offense for which extradition is requested.
ARTICLE 7
Lapse of Time
Extradition shall not be granted when the prosecution or the
enforcement of the penalty for the offense for which extradition has
been sought has become barred by lapse of time according to the laws of
the requesting or requested Party
ARTICLE 8
Capital Punishment
When the offense for which extradition is requested is punishable
by death under the laws of the requesting Party and the laws of the
requested Party do not permit such punishment for that offense,
extradition may be refused unless the requesting Party furnishes such
assurances as the requested Party considers sufficient that the death
penalty shall not be imposed, or, if imposed, shall not be executed.
ARTICLE 9
Extradition of Nationals
1. - Neither Contracting Party shall be bound to deliver up its own
nationals, but the executive authority of the requested Party shall, if
not prevented by the laws of that Party, have the power to deliver them
up if, in its discretion, it be deemed proper to do so.
2. - If extradition is not granted pursuant to paragraph 1 of this
Article, the requested Party shall submit the case to its competent
authorities for the purpose of prosecution, provided that Party has
jurisdiction over the offense.
ARTICLE 10
Extradition Procedures and Required Documents
1. - The request for extradition shall be made through the
diplomatic channel.
2. - The request for extradition shall contain the description of
the offense for which extradition is requested and shall be accompanied
by:
a) A statement of the facts of the case;
b) The text of the legal provisions describing the essential
elements of the offense;
c) The text of the legal provisions describing the punishment for
the offense;
d) The text of the legal provisions relating to the time limit on
the prosecution or the execution of the punishment of the offense;
e) The facts and personal information of the person sought which
will permit his identification and, where possible,
information concerning his location.
3. - In addition, when the request for extradition relates to a
person who has not yet been convicted, It shall be accompanied by:
a) A certified copy of the warrant of arrest issued by a judge or
other judicial officer of the requesting Party;
b) Evidence which, in accordance with the laws of the requested
Party, would justify the apprehension and commitment for
trial of the person sought if the offense had been
committed there.
4. When the request for extradition relates to a convicted person,
it shall be accompanied by a certified copy of the judgment of
conviction imposed by a court of the requesting Party.
If the person was found guilty but not sentenced, the extradition
request shall be accompanied by a certification to that effect and a
certified copy of the warrant of arrest.
If such person has already been sentenced, the request for
extradition shall be accompanied by a certification of the sentence
imposed and a statement indicating which part of the sentence has not
been carried out.
5. - All the documents that must be presented by the requesting
Party in accordance with the provisions of this Treaty shall be
accompanied by a translation in the language of the requested Party.
6. - The documents which, according to this Article, shall
accompany the request for extradition, shall be received in evidence
when:
a) In the case of a request emanating from the United States, they
are authenticated by the official seal of the Department of
State and legalized by the manner prescribed by the Mexican
law;
b) In the case of a request emanating from the United Mexican
States, they are certified by the principle diplomatic or
consular officer of the United States in Mexico.
ARTICLE 11
Provisional Arrest
1. - In the case of urgency, either Contracting Party may request,
through the diplomatic channel, the provisional arrest of an accused or
convicted person. The application shall contain a description of the
offense for which the extradition is requested, a description of the
person sought and his whereabouts, an undertaking to formalize the
request for extradition, and a declaration of the existence of a
warrant of arrest issued by a competent judicial authority or a
judgment of conviction issued against the person sought.
2. - On receipt of such a request, the requested Party shall take
the necessary steps to secure the arrest of the person claimed.
3. - Provisional arrest shall be terminated if, within a period of
60 days after the apprehension of the person claimed, the executive
authority of the requested Party has not received the formal request
for extradition and the documents mentioned in Article 10.
4. - The fact that the provisional arrest is terminated pursuant to
paragraph 3 shall not prejudice the extradition of the person sought if
the request for extradition and the necessary documents mentioned in
Article 10 are delivered at a later date.
ARTICLE 12
Additional Evidence
If the Executive authority of the requested Party considers that
the evidence furnished in support of the request for extradition is not
sufficient in order to fulfill the requirements of this Treaty, that
Party shall request the presentation of the necessary additional
evidence.
ARTICLE 13
Procedure
1. The request fur extradition shall be processed in accordance
with the legislation of the requested Party.
2. - The requested Party shall make all arrangements necessary for
internal procedures arising out of the request for extradition.
3. - The competent legal authorities of the requested Party shall
be authorized to employ all legal means within their power to obtain
from the judicial authorities the decisions necessary for the
resolution of the request for extradition.
ARTICLE 14
Decision and Surrender
1. - The requested Party shall promptly communicate to the
requesting Party its decision on the request for extradition.
2. - In the case of complete or partial rejection of a request for
extradition, the requested Party shall give the reasons on which it was
based.
3. - If the extradition is granted, the surrender of the person
sought shall take place within such time as may be prescribed by the
laws of the requested Party. The competent authorities of the
Contracting Parties shall agree on the date and place of the surrender
of the person sought.
4. - If the competent authority has issued the warrant or order for
the extradition of the person sought and he is not removed from the
territory of the requested Party within the prescribed period, he shall
be set at liberty and the requested Party may subsequently refuse to
extradite him for the same offense.
ARTICLE 15
Delayed Surrender
The requested Party, after granting the extradition, may defer the
surrender of the person sought when that person is being proceeded
against or is serving a sentence in the territory of the requested
Party for a different offense, until the conclusion of the proceeding
or the full execution of the punishment that has been imposed.
ARTICLE 16
Requests for Extradition Made by Third States
The requested Party, in the case of receiving requests from the
other Contracting Party and from one or more third States for the
extradition of the same person, be it for the same offense or for
different offenses, shall decide to which requesting State it shall
grant the extradition of that person.
ARTICLE 17
Rule of Speciality
1. - A person extradited under the present Treaty shall not be
detained, tried or punished in the territory of the requesting Party
for an offense other than that for which extradition has been granted
nor be extradited by that Party to a third State unless:
a) He has left the territory of the requesting Party after his
extradition and has voluntarily returned to it:
b) He has not left the territory of the requesting Party within 60
days after being free to do so; or
c) The requested Party has given its consent to his detention,
trial, punishment or extradition to a third State for an
offense other than that for which the extradition was
granted.
These stipulations shall not apply to offenses committed after the
extradition.
2. - If, in the course of the procedure, the classification of the
offense is changed for which the person requested was extradited he
shall be tried and sentenced on the condition that the offense, in its
new legal form:
a) Is based on the same group of facts established in the request
for extradition and in the documents presented in its
support: and
b) Is punishable with the same maximum sentence as the crime for
which be was extradited or with a lesser sentence.
ARTICLE 18
Summary Extradition
If the person sought informs the competent authorities of the
requested Party that he agrees to be extradited, that Party may grant
his extradition without further proceedings, and shall take all
measures permitted under its laws to expedite the extradition. In such
cases Article 17 shall not be applicable.
ARTICLE 19
Surrender of Property
1 - To the extent permitted under the law of the requested Party
and subject to the rights of third parties, which shall be duly
respected, all articles, instruments, objects of value or documents
relating to the offense, whether or not used for its execution, or
which in any other manner may be material evidence for the prosecution,
shall be surrendered upon the granting of the extradition even when
extradition cannot be effected due to the death, disappearance, or
escape of the accused.
2. - The requested Party may condition the surrender of articles
upon a satisfactory assurance from the requesting Party that the
articles will be returned to the requested Party as soon as possible,
ARTICLE 20
Transit
1. - The right to transport through the territory of one of the
Contracting Parties a person who is not a national of that Contracting
Party surrendered to the other Contracting Party by a third State shall
be granted on presentation made through the diplomatic channel of a
certified copy of the decision on extradition, provided that reasons of
public order are not opposed to the transit.
2. - The authorities of the transit State shall be in charge of the
custody of the extradited person while that person is in its territory.
3. - The Party to which the person has been extradited shall
reimburse the State through whose territory such person is transported
for any expenses incurred by the latter in connection with such
transportation.
ARTICLE 21
Expenses
The requested Party shall bear the expenses of the arrangements
referred to in Article 13, with the exception that the expenses
incurred for the translation of documents and, if applicable, for the
transportation of the person ordered extradited shall be paid by the
requesting Party.
ARTICLE 22
Scope of Application
1. - This Treaty shall apply to offenses specified in Article 2
committed before and after this Treaty enters into force.
2. - Requests for extradition that are under process on the date of
the entry into force of this Treaty, shall be resolved in accordance
with the provisions of the Treaty of 22 February, 1899,[\1\] and the
Additional Conventions on Extradition of 25 June 1902,[\2\] 23 December
1925,[\3\] and 16 August 1939.[\4\]
---------------------------------------------------------------------------
\1\ TS 242; 31 Stat. 1818.
\2\ TS 421; 9 Bevans 918.
\3\ TS 741; 44 Stat. 2409.
\4\ TS 967; 55 Stat. 1133.
---------------------------------------------------------------------------
ARTICLE 23
Ratification, Entry into Force, Denunciation
1. - This Treaty shall be subject to ratification; the exchange of
instruments of ratification shall take place in Washington as soon as
possible.
2. - This Treaty shall enter into force on the date of exchange of
the instruments of ratification.
3. - On entry into force of this Treaty, the Treaty of Extradition
of 22 February 1899 and the Additional Conventions on Extradition of 25
June 1902, 23 December 1925 and 16 August 1939 between the United
States of America and the United Mexican States, shall cease to have
effect without prejudice to the provisions of Article 22.
4. - Either Contracting Party may terminate this Treaty by giving
notice to the other Party. The termination shall take effect six months
after the receipt of such notice.
Done In two originals, in the English and Spanish languages. both
equally authentic at Mexico City this fourth day of May, one thousand
nine hundred and seventy eight.
Cyrus Vance
For the Government of the
United States of America
S. Roel
For the Government of the
United Mexican States
______
APPENDIX
1. Murder or manslaughter: abortion.
2. Malicious wounding or injury.
3. Abandonment of minors or other dependents when there is danger
of injury or death.
4. Kidnapping; child stealing: abduction: false imprisonment.
5. Rape; statutory rape; indecent assault, corruption of minors,
including unlawful sexual acts with or upon children under
the age of consent.
6. Procuration; promoting or facilitating prostitution.
7. Robbery, burglary; larceny.
8. Fraud.
9. Embezzlement.
10. An offense against the laws relating to counterfeiting and
forgery.
11. Extortion.
12. Receiving or transporting any money, valuable securities, or
other property knowing the same to have been unlawfully
obtained.
13. Arson; malicious injury to property.
14. Offenses against the laws relating to the traffic in,
possession, production, manufacture, importation or
exportation of dangerous drugs and chemicals, including
narcotic drugs. cannabis, psychotropic drugs. opium,
cocaine, or their derivatives.
15. Offenses against the laws relating to the control of poisonous
chemicals or substances injurious to health.
16. Piracy.
17. Offenses against the safety of means of transportation
including any act that would endanger a person in a means
of transportation.
18. An offense relating to unlawful seizure or exercise of control
of trains, aircraft, vessels, or other means of
transportation.
19. Offenses against the laws relating to prohibited weapons, and
the control of firearms, ammunition, explosives, incendiary
devices or nuclear materials.
20. An offense against the laws relating to international trade and
transfers of funds or valuable metals.
21. An offense against the laws relating to the importation,
exportation, or international transit of goods, articles,
or merchandise, including historical or archaeological
items.
22. Violations of the customs laws.
23. Offenses against the laws relating to the control banking
institutions, or other corporations.
24. Offenses against the laws relating to the sale of securities,
including stocks, bonds and instruments of credit.
25. Offenses against the laws relating to bankruptcy or
rehabilitation of a corporation.
26. Offenses against the laws or unfair transactions.
27. Offenses against the laws property or copyright.
28. Offenses against the laws relating to abuse of official
authority.
29. Bribery, including soliciting, offering and accepting bribes.
30. Perjury; false statements to any governmental authority.
Subornation of perjury or false statements.
31. Offenses against the laws relating to obstruction of justice,
including harboring criminals and suppressing evidence.
______
Annex 4 (Relates to Sen. Biden Spain Extradition Supplementary
Treaty Question 1)
SPAIN
Extradition
Treaty signed at Madrid May 29, 1970;
Ratification advised by the Senate of the United States of America
February 17, 1971;
Ratified by the President of the United States of America March 1,
1971;
Ratified by Spain May 8, 1971;
Ratifications exchanged at Washington June 16, 1971;
Proclaimed by the President of the United States of America July 2,
1971;
Entered into force June 16, 1971.
__________
By the President of the United States of America
A PROCLAMATION
Considering that:
The Treaty on Extradition between the United States of America and
Spain was signed on May 29, 1970, the original of which Treaty is
annexed hereto;
The Senate of the United States of America by its resolution of
February 17, 1971, two-thirds of the Senators present concurring
therein, gave its advice and consent to ratification of the Treaty;
The Treaty was ratified by the President of the United States of
America on March 1, 1971, in pursuance of the advice and consent of the
Senate, and has been duly ratified on the part of the Government of
Spain;
The respective instruments of ratification were exchanged at
Washington on June 16, 1971;
It is provided in Article XVIII of the Treaty that the Treaty shall
enter into force upon the exchange of ratifications;
Now, therefore, I, Richard Nixon, President of the United States of
America, proclaim and make public the Treaty, to the end that it shall
be observed and fulfilled with good faith on and after June 16, 1971 by
the United States of America and by the citizens of the United States
of America and all other persons subject to the jurisdiction thereof.
In testimony whereof, I have signed this proclamation and caused
the Seal of the United States of America to be affixed.
Done at the city of Washington this second day of July in the year of
our Lord one thousand nine hundred seventy one and of the
Independence of the United States of America the one
hundred ninety-fifth.
[SEAL]
Richard Nixon
By the President:
William P. Rogers
Secretary of State
__________
TREATY ON EXTRADITION BETWEEN
THE UNITED STATES OF AMERICA
AND SPAIN
______
TREATY ON EXTRADITION BETWEEN THE UNITED STATES OF AMERICA AND SPAIN
The President of the United States of America and the Chief of
State of Spain, desiring to make more effective the cooperation of the
two countries in the repression of crime through the rendering of
maximum assistance in matters of extradition,
Have decided to conclude a Treaty and to this end have named as
their representatives:
The President of the United States of America, The Honorable
William P. Rogers, Secretary of State,
The Chief of State of Spain, His Excellency Senor Gregono Lopez
Bravo de Castro, Minister of Foreign Affairs, who have agreed as
follows:
Article I
In accordance with the conditions established in this Treaty, each
Contracting Party agrees to extradite to the other, for prosecution or
to undergo sentence, persons found in its territory who have been
charged with or convicted of any of the offenses mentioned in Article
II of this Treaty committed within the territory of the other, or
outside thereof under the conditions specified in Article III.
Article II
A. Persons shall be delivered up according to the provisions of
this Treaty for any of the following offenses provided that these
offenses are punishable by the laws of both Contracting Parties by a
term of imprisonment exceeding one year:
1. Murder; infanticide; patricide; manslaughter.
2. Abortion.
3. Rape; statutory rape; indecent assault, including sodomy and
unlawful sexual acts with or upon minors under the age
specified by the penal laws of both Contracting Parties.
4. Aggravated injury or mutilation.
5. Procuration.
6. Willful nonsupport or willful abandonment of a child or spouse
when for that reason the life of that child or spouse is or
is likely to be endangered.
7. Bigamy.
8. Kidnapping or abduction; child stealing; false imprisonment.
9. Robbery or larceny or burglary; housebreaking.
10. Embezzlement; malversation; breach of fiduciary relationship.
11. Obtaining money, valuable securities or property, by false
pretenses, by threat of force or by other fraudulent means
including the use of the mails or other means of
communication.
12. Any offense relating to extortion or threats.
13. Bribery, including soliciting, offering and accepting.
14. Receiving or transporting any money, valuable securities or
other property knowing the same to have been obtained
pursuant to a criminal act.
15. Any offense relating to counterfeiting or forgery; making a
false statement to a government agency or official.
16. Any offense relating to perjury or false accusation.
17. Arson; malicious injury to property.
18. Any malicious act that endangers the safety of any person in a
railroad train, or aircraft or vessel or bus or other means
of transportation.
19. Piracy, defined as mutiny or revolt on board an aircraft or
vessel against the authority of the captain or commander of
such aircraft or vessel, any seizure or exercise of
control, by force or violence or threat of force or
violence, of an aircraft or vessel.
20. Any offense against the bankruptcy laws.
21. Any offense against the laws relating to narcotic drugs,
psychotropic drugs, cocaine and its derivatives, and other
dangerous drugs, including cannabis, and chemicals or
substances injurious to health.
22. Any offense relating to firearms, explosives, or incendiary
devices.
23. Unlawful interference in any administrative or juridical
proceedings by bribing, threatening, or injuring by any
means, any officer, juror, witness, or duly authorized
person.
B. Extradition shall also be granted for participation in any of
the offenses mentioned in this article, not only as principal or
accomplices, but as accessories, as well as for attempt to commit or
conspiracy to commit any of the aforementioned offenses, when such
participation, attempt or conspiracy is subject, under the laws of both
Parties, to a term of imprisonment exceeding one year.
C. If extradition is requested for any offense listed in paragraphs
A or B of this article and that offense is punishable under the laws of
both Contracting Parties by a term of imprisonment exceeding one year,
such offense shall be extraditable under the provisions of this Treaty
whether or not the laws of both Contracting Parties would place that
offense within the same category of offenses made extraditable by
paragraphs A and B of this article and whether or not the laws of the
requested Party denominate the offense by the same terminology.
D. Extradition shall also be granted for the above mentioned
offenses, even when, in order to recognize the competent federal
jurisdiction, circumstances such as the transportation from one State
to another, have been taken into account and may be elements of the
offense.
Article III
A. For the purposes of this Treaty the territory of a Contracting
Party shall include all territory under the jurisdiction of that
Contracting Party, including airspace and territorial waters and
vessels and aircraft registered in that Contracting Party if any such
aircraft is in flight or if any such vessel is on the high seas when
the offense is committed. For purposes of this Treaty an aircraft shall
be considered to be in flight from the moment when power is applied for
the purpose of takeoff until the moment when the landing run ends.
B. Without prejudice to paragraph A, 1 of Article V, when the
offense for which extradition has been requested has been committed
outside the territory of the requesting Party, extradition may be
granted if the laws of the requested Party provide for the punishment
of such an offense committed in similar circumstances, and if the
person whose surrender is sought is not also the subject of a request
from another State whose jurisdiction over the person may take
preference for territorial reasons and in respect of which there exists
an equal possibility of acceding to a request for extradition.
Article IV
Neither of the Contracting Parties shall be bound to deliver up its
own nationals, but the executive authority of the United States and the
competent authority of Spain shall have the power to deliver them up,
if, in its discretion, it be deemed proper to do so.
Article V
A. Extradition shall not be granted in any of the following
circumstances:
1. When the person whose surrender is sought is being proceeded
against or has been tried and discharged or punished in the territory
of the requested Party for the offense for which his extradition is
requested.
2. When the person whose surrender is sought has been tried and
acquitted or has undergone his punishment in a third State for the
offense for which his extradition is requested.
3. When the prosecution or the enforcement of the penalty for the
offense has become barred by lapse of time according to the laws of
either of the Contracting Parties.
4. When the offense in respect of which the extradition is
requested is regarded by the requested Party as an offense of a
political character, or that Party has substantial grounds for
believing that the request for extradition has been made for the
purpose of trying or punishing a person for an offense of the above
mentioned character. If any question arises as to whether a case comes
within the provisions of this subparagraph, the authorities of the
Government on which the requisition is made shall decide.
5. When the offense is purely military.
B. For the purposes of the application of subparagraph A, 4 of this
article, the attempt, whether consummated or not, against the life of
the Head of State or of a member of his family shall not be considered
a political offense or an act connected with such an offense.
C. For the same purposes of application of subparagraph A, 4 of
this article an offense committed by force or intimidation on board a
commercial aircraft carrying passengers in scheduled air services or on
a charter basis, with the purpose of seizing or exercising control of
such aircraft, will be presumed to have a predominant character of a
common crime when the consequences of the offense were or could have
been grave. The fact that the offense has endangered the life or
jeopardized the safety of the passengers or crew will be given special
consideration in the determination of the gravity of such consequences.
Article VI
If a request for extradition is made under this Treaty for a person
who at the time of such request is under the age of eighteen years and
is considered by the requested Party to be one of its residents, the
requested Party, upon a determination that extradition would disrupt
the social readjustment and rehabilitation of that person, may
recommend to the requesting Party that the request for extradition be
withdrawn, specifying the reasons therefore.
Article VII
When the offense for which the extradition is requested is
punishable by death under the laws of the requesting Party, extradition
shall be denied unless the requesting Party provides such assurances as
the requested Party considers sufficient that the death penalty shall
not be imposed, or, if imposed, shall not be executed.
Article VIII
The requested Party may, after a decision on the request has been
rendered by a court of competent jurisdiction, defer the surrender of
the person whose extradition is requested when that person is being
proceeded against or is serving a sentence in the territory of the
requested Party for an offense other than that for which extradition
has been requested until the conclusion of the proceedings and the full
execution of any punishment he may be or may have been awarded.
Article IX
The determination that extradition based upon the request therefore
should or should not be granted shall be made in accordance with this
Treaty and with the law of the requested Party. The person whose
extradition is sought shall have the right to use such remedies and
recourses as are provided by such law.
Article X
A. The request for extradition shall be made through the diplomatic
channel.
B. The request shall be accompanied by:
1. A description of the person sought;
2. A statement of the facts of the case;
3. The text of the applicable laws of the requesting Party
including the law defining the offense, the law prescribing the
punishment for the offense, and the law relating to the limitations of
the legal proceedings or the enforcement of the penalty for the
offense.
C. 1. When the request relates to a person already convicted, it
must be accompanied by:
When emanating from the United States, a copy of the judgment of
conviction and of the sentence, if it has been passed; or
When emanating from Spain, a copy of the sentence.
2. In any ease, a statement showing that the sentence has not been
served or how much of the sentence has not been served shall accompany
the request.
D. When the request relates to a person who has not yet been
convicted, it must also be accompanied by a warrant of arrest issued by
a judge or other judicial officer of the requesting Party.
The requested Party may require the requesting Party to produce
prima facie evidence to the effect that the person claimed has
committed the offense for which extradition is requested. The requested
Party may refuse the extradition request if an examination of the case
in question shows that the warrant is manifestly ill-founded.
E. If a question arises regarding the identity of the person whose
extradition is sought, evidence proving the person requested is the
person to whom the warrant of arrest or sentence refers shall be
submitted.
F. The documents which, according to this article, shall accompany
the extradition request, shall be admitted in evidence when:
In the case of a request emanating from Spain they bear the
signature of a judge or other juridical or public official and are
certified by the principal diplomatic or consular officer of the United
States in Spain; or
In the case of a request emanating from the United States they are
signed by a judge, magistrate or officer of the United States and they
are sealed by the official seal of the Department of State and are
certified by the Embassy of Spain in the United States.
G. The documents mentioned in this article shall be accompanied by
an official translation into the language of the requested Party which
will be at the expense of the requesting Party.
Article XI
A. In case of urgency a Contracting Party may apply to the other
Contracting Party for the provisional arrest of the person sought
pending the presentation of the request for extradition through the
diplomatic channel. This application may be made either through the
diplomatic channel or directly between the respective Ministries of
Justice.
B. The application shall contain a description of the person
sought, indication of intention to request the extradition of the
person sought and a statement of the existence of a warrant of arrest
or a judgment of conviction or sentence against that person, and such
further information, if any, as may be required by the requested Party.
C. On receipt of such an application the requested Party shall take
the necessary steps to secure the arrest of the person claimed.
D. A person arrested upon such an application shall be set at
liberty upon the expiration of 30 days from the date of his arrest if a
request for his extradition accompanied by the documents specified in
Article X shall not have been received. However, this stipulation shall
not prevent the institution of proceedings with a view to extraditing
the person sought if the request is subsequently received.
Article XII
If the requested Party 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 Party
shall require.
If the person sought is under arrest and the additional evidence or
information submitted as aforesaid is not sufficient or if such
evidence or information is not received within the period specified by
the requested Party, he shall be discharged from custody. However, such
discharge shall not bar the requesting Party from submitting another
request in respect of the same or any other offense.
Article XIII
A person extradited under the present Treaty shall not be detained,
tried or punished in the territory of the requesting Party for an
offense other than that for which extradition has been granted nor be
extradited by that Party to a third State unless:
1. He has left the territory of the requesting Party after his
extradition and has voluntarily returned to it;
2. He has not left the territory of the requesting Party within 45
days after being free to do so; or
3. The requested Party has consented to his detention, trial,
punishment or to his extradition to a third State for an offense other
than that for which extradition was granted.
These stipulations shall not apply to offenses committed after the
extradition.
Article XIV
A Party which receives two or more requests for the extradition of
the same person either for the same offense, or for different offenses,
shall determine to which of the requesting States it will extradite the
person sought, taking into consideration the existing circumstances and
particularly the possibility of a later extradition between the
requesting States, the seriousness of each offense, the place where the
offense was committed, the nationality of the person sought, the dates
upon which the requests were received and the provisions of any
extradition agreements between the requested Party and the other
requesting State or States.
Article XV
The requested Party shall promptly communicate to the requesting
Party through the diplomatic channel the decision on the request for
extradition.
In the case of a complete or partial rejection of the extradition
request, the requested Party shall indicate the reasons for the
rejection.
If the extradition has been granted, the authorities of the
requesting and requested Parties shall agree on the time and place of
the surrender of the person sought. Surrender shall take place within
such time as may be prescribed by the laws of the requested Party.
If the person sought is not removed from the territory of the
requested Party within the time prescribed, he may be set at liberty
and the requested Party may subsequently refuse to extradite that
person for the same offense.
Article XVI
To the extent permitted under the law of the requested Party and
subject to the rights of third Parties, which shall be duly respected,
all articles acquired as a result of the offense or which may be
required as evidence shall, if found, be surrendered upon the granting
of the extradition request.
Subject to the qualifications of the first paragraph, the above
mentioned articles shall be returned to the requesting Party even if
the extradition, having been agreed to, cannot be carried out owing to
the death or escape of the person sought.
Article XVII
Expenses related to the transportation of the person sought shall
be paid by the requesting Party. The appropriate legal officers of the
country in which the extradition proceedings take place shall, by all
legal means within their power, assist the requesting Party before the
respective judges and magistrates.
No pecuniary claim, arising out of the arrest, detention,
examination and surrender of persons sought under the terms of this
Treaty, shall be made by the requested Party against the requesting
Party.
Article XVIII
The ratifications of this Treaty shall be exchanged in Washington
as soon as possible.
This Treaty shall enter into force upon the exchange of
ratifications and will continue in force until either Contracting Party
shall give notice of termination to the other, which termination shall
be effective six months after the date of receipt of such notice.
This Treaty shall terminate and replace the Extradition Treaty
between the United States and Spain signed at Madrid June 15, 1904 and
the Protocol thereto signed at San Sebastian August 13, 1907;[\1\]
however, the crimes listed in that Treaty and Protocol and committed
prior to the entry into force of this Treaty shall nevertheless be
subject to extradition pursuant to the provisions of that Treaty and
Protocol.
---------------------------------------------------------------------------
\1\ TS 492; 35 Stat 1947, 1955.
In witness whereof the Plenipotentiaries have signed this Treaty
---------------------------------------------------------------------------
and have hereunto affixed their seals.
Done in duplicate, in the English and Spanish languages, both
equally authentic, at Madrid this twenty-ninth day of May, one thousand
nine hundred seventy.
FOR THE UNITED STATES OF AMERICA:
William P. Rogers
[SEAL]
FOR SPAIN:
Gregorio Lopez Bravo
[SEAL]
treaties and other international acts series 8938
EXTRADITION
Supplementary Treaty
Between the
United States of America
and Spain
Amending the Treaty of
May 29, 1970
Signed at Madrid January 25, 1975
NOTE BY THE DEPARTMENT OF STATE
Pursuant to Public Law 89-497, approved July 8, 1996 (80 Stat. 271;
1 U.S.C. 113)
``. . . the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the United
States, and of the several States, without any further proof of
authentication thereof.''
SPAIN
Extradition
Supplementary treaty amending the treaty of May 29, 1970.
Signed at Madrid January 25, 1975;
Ratification advised by the Senate of the United States of America June
21, 1976;
Ratified by the President of the United States of America August10,
1976;
Ratified by Spain October 10, 1975;
Ratifications exchanged at Washington June 2, 1978;
Proclaimed by the President of the United States of America June 27,
1978.
Entered into force June 2, 1978.
__________
By the President of the United States of America
A PROCLAMATION
Considering That:
The Supplementary Treaty on Extradition between the United States
of America and Spain was signed at Madrid on January 25, 1975, the text
of which Supplementary Treaty, in the English and Spanish languages, is
hereto annexed;
The Senate of the united Sates of America by its resolution of June
21, 1976, two-thirds of the Senators present concurring therein, gave
its advice and consent to ratification of the Supplementary Treaty;
The Supplementary Treaty was ratified by the President of the
United States of America on August 10, 1976, in pursuance of the advice
and consent of the Senate, and was duly ratified on the part of Spain;
It is provided in Article II of the Supplementary Treaty that the
Supplementary Treaty shall enter into force upon the exchange of
instruments of ratification;
The instruments of ratification of the Supplementary Treaty were
exchanged at Washington on June 2, 1978; and accordingly the
Supplementary Treaty entered into force on that date;
Now, therefore, I, Jimmy Carter, President of the United States of
America, proclaim and make public the Supplementary Agreement, to the
end that it shall be observed and fulfilled with good faith on and
after June 2, 1978, by the United States of America and by the citizens
of the United States of America and all other persons subject to the
jurisdiction thereof.
In testimony thereof, I have signed this proclamation and caused
the Seal of the United States of America to be affixed.
Done at the city of Washington this twenty-seventh day of June in the
year of our Lord one thousand nine hundred seventy-eight
and of the Independence of the United States of America the
two hundred second.
[SEAL]
Jimmy Carter
By the President:
Cyrus Vance
Secretary of State
Supplementary Treaty on Extradition Between
The United States of America and Spain
The President of the United States of America and the Chief of the
State of Spain, desiring to make more effective the cooperation of the
two countries in the repression of crime through the rendering of
maximum assistance in matters of extradition,
Have decided to conclude a Supplementary Treaty on Extradition to
amend the Treaty of Extradition signed at Madrid on May 29, 1970,[\1\]
hereinafter referred to as the 1970 Treaty, and to this end have named
as their representatives:
---------------------------------------------------------------------------
\1\ TIAS 7136; 22 UST 737
---------------------------------------------------------------------------
The President of the United States of America:
Samuel D. Eaton, Esquire, Charge d'Affaires ad interim,
The Chief of State of Spain:
His Excellency Senor D. Pedro Cortina Mauri, Minister of Foreign
Affairs,
who, after having exchanged their full powers, found to be in good and
due form, have agreed as follows:
Article I
Paragraph D of Article XI of the 1970 Treaty is revised as follows:
``A person arrested upon such an application shall be set at liberty
upon the expiration of 45 days from the date when the Embassy of the
country seeking extradition is informed through diplomatic channels of
the fact of this arrest if a request for his extradition accompanied by
the documents specified in Article X shall not have been received.
However, this stipulation shall not prevent the institution of
proceedings with a view to extraditing the person sought if the request
is subsequently received.''
Article II
This Supplementary Treaty is subject to ratification and the
instruments of ratification shall be exchanged in Washington as soon as
possible.
This Supplementary Treaty shall enter into force upon the exchange
of instruments of ratification and shall cease to be effective on the
date of the termination of the 1970 Treaty.
treates and other international acts series 7136
EXTRADITION
Treaty Between the
United States of America
and Spain
Signed at Madrid May 29, 1970
English Text Only
NOTE BY THE DEPARTMENT OF STATE
Pursuant to Public Law 89497, approved July 8, 1966 (80 Stat 271; 1
U.S.C 113)--
``. . . the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the United
States, and of the several States, without any further proof or
authentication thereof.''
SECOND SUPPLEMENTARY TREATY
ON EXTRADITION BETWEEN
THE UNITED STATES OF AMERICA
AND
THE KINGDOM OF SPAIN
The United States of America and the Kingdom of Spain;
Desiring to make more effective the Treaty on Extradition between
the Contracting Parties, signed at Madrid on May 29, 1970, as amended
by the Supplementary Treaty on Extradition, signed at Madrid on January
25, 1975 (hereinafter referred to as ``the Extradition Treaty'');
Have resolved to conclude a Second Supplementary Treaty and have
agreed as follows:
Article 1
Article I of the Extradition Treaty is deleted and replaced by the
following:
Pursuant to the provisions of this Treaty, the Contracting Parties
agree to extradite to each other for prosecution or to undergo sentence
persons sought for extraditable offenses.
Article 2
Article II of the Extradition Treaty is deleted and replaced by the
following:
A. An offense shall be an extraditable offense if it is
punishable under the laws in both contracting parties by
deprivation of liberty for a period of more than one year or by
a more severe penalty, or in the case of a sentenced person, if
the sentence imposed was greater than four months.
B. Extradition shall also be granted for participation in any
of these offenses, not only as principals or accomplices, but
as accessories, as well as for attempts to commit or conspiracy
to commit any of the aforementioned offenses, when such
participation, attempt or conspiracy is subject, under the laws
of both Parties, to a term of imprisonment exceeding one year.
C. For the purposes of this Article, an offense shall be an
extraditable offense whether or not the laws in the Contracting
States place the offense within the same category of offenses
or describe the offense by the same terminology.
D. If extradition has been granted for an extraditable
offense, it shall also be granted for any other offense
specified in the request even if the latter offense is
punishable by less than one year's deprivation of liberty,
provided that all other requirements for extradition are met.
E. Extradition shall also be granted for these offenses, even
when, in order to recognize the competent federal jurisdiction,
circumstances such as the transportation from one State to
another, have been taken into account and may be elements of
the offense.
Article 3
Article IV of the Extradition Treaty is deleted and replaced by the
following:
Neither of the Contracting Parties shall be bound to deliver up its
own nationals, but the Executive Authority of the United States and the
competent authority of Spain, unless prohibited by their domestic
legislation, shall have the power to deliver them up if, in their
discretion, it be deemed proper to do so. If extradition is refused
solely on the basis of the nationality of the person sought, the
requested Party shall, at the request of the requesting Party, submit
the case to its authorities for prosecution.
Article 4
Article V, paragraphs B and C of the Extradition Treaty are deleted
and replaced by the following:
B. For the purpose of this Treaty, the following offenses
shall not be deemed to be offenses of a political character
within the meaning of subparagraph A of this Article:
(1) a murder or other willful crime against the
person of a Head of State of one of the Contracting
Parties, or of a member of the Head of State's family;
(2) an offense for which both Contracting 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 the purpose of prosecution;
(3) murder, voluntary manslaughter and voluntary
assault and battery inflicting serious bodily harm;
(4) an offense involving kidnapping, abduction, the
taking of a hostage, or any other form of illegal
detention;
(5)an offense involving the placement or use of an
explosive, incendiary or destructive device or
substance, as well as the use of automatic weapons, to
the extent that they cause or are capable of causing
serious bodily harm or substantial property damage;
(6) an attempt to commit one of the above-mentioned
offenses or the participation as co-author or
accomplice of a person who commits or attempts to
commit such an offense;
(7) illicit association or bands formed to commit any
of the foregoing offenses under the laws of Spain, or a
conspiracy to commit any such offenses as provided by
the laws in the United States.
Article 5
Article VIII of the Extradition Treaty is deleted and replaced by
the following:
A. If the extradition request is granted in the case of a
person who is being proceeded against or is serving a sentence
in the requested State, the requested Party may temporarily
surrender the person sought to the requesting Party for the
purpose of prosecution. The person so surrendered shall be kept
in custody in the requesting state and shall be returned to the
requested state after the conclusion of the proceedings against
that person, in accordance with conditions to be determined by
agreement of the contracting Parties.
B. The requested party may postpone the extradition
proceedings against a person who is being prosecuted or who is
serving a sentence in that State. The postponement may continue
until the prosecution of the person sought has been concluded
and any sentence has been served.
Article 6
Article X, paragraph D of the Extradition Treaty is deleted and
replaced by the following:
When the request relates to a person who has not yet been
convicted, it must also be accompanied by a warrant of arrest
issued by a judge or other judicial officer of the requesting
party and such information as would justify the committal for
trial of the person if the offense had been committed in the
requested State. The requested Party may refuse the extradition
request if an examination of the case in question shows that
the warrant is manifestly ill-founded.
Article 7
Article XI, paragraph A of the Extradition Treaty is amended by
adding the following third sentence:
The facilities of the International Criminal police
organization (Interpol) may be used to transmit such a request.
Article 8
Article XV of the Extradition Treaty is deleted and replaced by the
following:
The requested party shall communicate to the requesting Party
as soon as possible through the diplomatic channel the decision
on the request for extradition.
In the case of a complete or partial rejection of the
extradition request, the requested Party shall indicate the
reasons for the rejection.
The surrender shall be subject to the laws of the requested
Party.
If the extradition has been granted, the authorities of the
requesting and requested Parties shall agree on the time and
place of the surrender of the person sought. Surrender shall
take place within such times as may be prescribed by the laws
of the requested Party.
If the person sought is not removed from the territory of the
requested Party within the time prescribed, he may be set at
liberty and the requested Party may subsequently refuse to
extradite that person for the same offense.
Article 9
1. The extraditions requested after the entry into force of this
Supplementary Treaty shall be governed by its provisions, whatever the
date of the commission of the offense may be, except that in the case
of offenses not covered by the 1970 Treaty, this Supplementary Treaty
will only be applicable if the requested person is found in the
requested State forty-five (45) days after the entry into force of this
Supplementary Treaty.
2. The extraditions requested before the entry into force of this
Supplementary Treaty shall continue to be processed and shall be
resolved in accordance with the provisions of the Treaty of May 29,
1970.
Article 10
(1) This supplementary Treaty shall the Extradition Treaty.
(2) This Supplementary Treaty shall be subject to ratification and
the instruments of ratification shall be exchanged at Washington as
soon as possible. It shall enter into force thirty days after the
exchange of instruments of ratification. It shall be subject to
termination in the same manner as the Extradition Treaty.
IN WITNESS WHEREOF, the plenipotentiaries have signed this
Supplementary Treaty.
DONE at Madrid this 9th day of February, 1988, in duplicate, in the
Spanish and English languages, both texts being equally authentic.
______
Annex 5 (Relates to Sen. Biden Hong Kong Prisoner Transfer Treaty
Question 2)
Guidelines for Administration of Prisoner Transfer Treaties and
Implementation of 18 U.S.C. 4100, et seq.
i. general considerations
A. Background
The United States of America became a signatory to treaties with
the United Mexican States, and Canada, in 1976 and 1977 respectively,
for the transfer of prisoners and the execution of penal sentences.
Since 1977 the United States has become a signatory on prisoner
transfer treaties with Bolivia (1978), France (1983), Panama (1979),
Peru (1979), Turkey (1979) and the Council of Europe Convention (1983).
Pursuant to the treaties with Mexico and Canada, and in
contemplation of future treaties and the Council of Europe Convention,
the Congress of the United States enacted legislation regarding the
transfer of prisoners, found at 18 U.S.C. 4100, et seq. The
implementing legislation, specifically 18 U.S.C. 4102(4) authorizes the
Attorney General of the United States to make regulations for the
proper implementation of such treaties and to make regulations for the
implementation of this specific legislation. 18 U.S.C. 4102(11)
authorizes the Attorney General to delegate his authority, conferred by
this legislation, to officers of the Department of Justice. This
authority was delegated to the Senior Associate Director, Office of
Enforcement Operations, Criminal Division, Department of Justice.
These guidelines set forth the criteria to be considered by the
Department of Justice in implementing the specific legislation and,
thereby, the treaties for prisoner transfer.
These guidelines provide only internal Department of Justice
guidance. They are not intended to, do not, and may not be relied upon
to create any rights, substantive or procedural, enforceable at law by
any person in any matter civil or criminal. Nor are any limitations
hereby placed on otherwise lawful litigation prerogatives of the
Department of Justice. Rather, these guidelines are intended to ensure
that responsible officials, in the exercise of their discretion, treat
prisoners fairly and not capriciously. These guidelines may be altered,
modified, amended or changed, at any time, without notice.
B. Application
Section 4100, et seq., of Title 18 and these guidelines allow the
Department to transfer prisoners, convicted of a crime in a foreign
country, to serve the sentence imposed in their home country when
appropriate treaties allowing such transfers exist. Because the
transfer of said prisoners must be determined on a case-by-case basis,
sound judgment will be required in making transfer decisions. In order
to appropriately assess an individual for transfer purposes,
information will be obtained from a variety of sources including the
prisoner and the sentencing state. All efforts shall be made to
minimize delays in obtaining this information.
C. Responsibilities
The decision to transfer or not to transfer a prisoner from the
United States to the prisoner's home country and the decision to accept
or reject the application of a United States citizen for transfer from
a foreign prison are the sole responsibility of the Senior Associate
Director, Office of Enforcement Operations, Criminal Division, or in
his absence, the Director of that office.
ii. procedures for determining the eligibility of american citizen
prisoners requesting transfer from foreign prisons to united states
prisons
A. In addition to specific criteria set forth in the treaty,
statutes and legislative history authorizing the transfer of an
individual to the United States from a foreign prison, the Office of
Enforcement Operations shall determine whether an individual is
eligible for transfer after considering the following:
1. whether the individual has paid any and all fines and/or
restitution ordered by the foreign court;
2. whether the offender has fulfilled the conditions of 18 U.S.C.
4100, et seq., and the conditions of the treaty pursuant to
which the transfer was requested;
3. whether the return of the offender to the United States would so
outrage public sensibilities because of the extremely
serious nature of the offender's crime or circumstances
surrounding it as to outweigh the rehabilitation
considerations;
4. whether the return of the offender to the United States would
constitute a threat to a citizen of the United States or to
the security of the United States;
5. whether there is reason to believe that the offender would, on
the offender's return to the United States, engage in any
activity that would be part of a pattern of criminal
activity planned and organized by a number of persons
acting in furtherance of any offense that may be punishable
under any of the laws of the United States;
6. whether the offender is actively under investigation, by either
the United States or the sentencing country, for criminal
activity;
7. whether the offender is capable of providing information, to
either the United States or the sentencing country,
regarding any matter under investigation and whether the
offender has or will provide information;
8. whether the offender has transferred before pursuant to a
prisoner transfer treaty;
9. the relative accessibility of the sentencing country's borders;
10. whether the offender is sentenced due to an immigration-related
offense or the purely military laws of a country;
11. whether the offender is a career criminal and whether the
offender is likely to be rehabilitated while incarcerated;
12. such other factors as may be appropriate given the specific
nature of the case or the defendant.
B. The criteria set forth herein are intended to serve as general
guidelines for the exercise of discretion in implementing 18 U.S.C.
4100 and the administration of the prisoner transfer treaties. Nothing
contained herein shall be construed as a limitation upon the discretion
of the Attorney General or his designee.
iii. procedures for determining eligibility of foreign national
prisoners requesting transfer from u.s. prisons
A. In addition to specific criteria set forth in the treaty,
statutes and legislative history authorizing the transfer
of an individual from the United States to a foreign
country, the Office of Enforcement Operations shall
determine whether an individual is eligible for transfer
after considering the following:
1. whether the offender has paid any and all fines and/or
restitution ordered by the United States Court as part of
the offender's sentence;
2. whether the offender has fulfilled the conditions of 18 U.S.C.
4100, et seq., and the conditions of the treaty pursuant to
which the transfer was requested;
3. whether the return of the offender to a foreign country would so
outrage public sensibilities because of the extremely
serious nature of the offender's crime or the circumstances
surrounding the offender's crime, as to outweigh the
rehabilitation considerations;
4. whether the return of the offender to a foreign country would
inhibit or interfere with law enforcement activities within
the United States;
5. whether the return of the offender to a foreign country would be
contrary to the public policy of the United States;
6. whether the return of the offender to a foreign country would
constitute a threat to a citizen of the United States or to
the security of the United States;
7. whether there is reason to believe that the offender would, on
the offender's return to a foreign country, engage in any
activity that would be part of a pattern of criminal
activity planned and organized by a number of persons
acting in furtherance of any offense that may be punishable
under any of the laws of the United States;
8. whether the offender is actively under investigation, by either
the United States or the foreign country, for criminal
activity;
9. whether the offender is capable of providing information, to
either the United States or foreign country, regarding any
matter under investigation and whether the offender has
provided said information;
10. whether the offender has transferred before pursuant to a
prisoner transfer treaty;
11. the relative proximity of the foreign country's natural borders
to the United States' borders;
12. whether the offender is sentenced due to an immigration
offense;
13. whether the offender is a career criminal;
14. whether the offender is likely to be rehabilitated while
incarcerated;
15. such other factors as may be appropriate given the specific
nature of the case or the defendant.
B. The criteria set forth herein are intended to serve as general
guidelines for the exercise of discretion in implementing 18 U.S.C.
4100 and the administration of the prisoner transfer treaties. Nothing
contained herein shall be construed as a limitation upon the discretion
of the Attorney General or his designee.
C. In addition to the criteria set forth in III(A) above, if the
offender is seeking to transfer to a foreign country from a state
prison in the United States, the following criteria shall be applied or
considered:
1. whether or not the state which sentenced the offender has been
authorized by state legislation to transfer prisoners of
foreign nationality to the countries of their citizenship
under treaties between the United States and foreign
countries;
2. whether the offender has complied with the requirements set
forth in the specific states' legislation regarding
prisoner transfers;
3. whether the individual state has approved the offender's
requested transfer to the country of citizenship;
4. whether the transfer of the offender would interfere with state
law enforcement investigations;
5. whether the transfer of the offender would outrage the
sensibilities of the public of that state due to the
egregious or serious nature of offender's crime or the
circumstances surrounding offender's crime.
IV. The guidelines and criteria contained herein are complementary
to the treaties and conventions entered into by and between the United
States and other countries or nations. Nothing in this agreement shall
be construed to expand, contradict, contravene or enlarge upon the laws
the United States of America, its states, provinces, territories or
political subdivisions.
v. procedures for review of offender's request for transfer
In addition to procedures and requirements set forth in 18 U.S.C.
4100, et seq., and the specific treaty pursuant to which transfer is
requested, the following procedures shall be followed in reviewing an
offender's request for transfer to or from the United States.
A. Upon receipt of an offender's request to transfer to the United
States from a foreign prison;
1. Inquiry shall be made of the foreign country with regards to the
statute under which the offender was sentenced, the
sentence received by offender; remission credits earned to
date; the prosecution's version of the crime, and any other
information that the Office of Enforcement Operations deems
relevant to a proper review of the request;
2. Inquiry shall be made of any and all appropriate United States
investigative agencies for information regarding the
offender, the instant offense and the past criminal history
of the offender;
3. Once all necessary information has been obtained, the request
and information shall be reviewed by the Office of
Enforcement Operations after which the Senior Associate
Director shall render a decision.
4. The Senior Associate Director of the Office of Enforcement
Operations shall make a decision to approve or deny the
offender's request for transfer;
5. The offender and the foreign country shall be promptly advised
of the decision of the Senior Associate Director of the
Office of Enforcement Operations;
B. Upon receipt of an offender's request to transfer from the
United States to the offender's country of citizenship.
In addition to the procedures set forth in V (A) 1-6, above,
inquiry shall be made of the appropriate agencies in order to obtain a
complete overview of the crime with which the offender has been
convicted.
vi. procedures in the event of a denial of offender's request for
transfer
A. Upon being informed of a denial of offender's request to
transfer the offender may:
1. Re-apply no less than one calendar year after date of denial.
2. Seek review of denial, at any time, if offender obtains new
information which may impact upon the decision of the
Senior Associate Director of the Office of Enforcement
Operations.