[Senate Executive Report 104-27]
[From the U.S. Government Publishing Office]
104th Congress Exec. Rept.
SENATE
2d Session 104-27
_______________________________________________________________________
EXTRADITION TREATY WITH HUNGARY
_______
July 30, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
[To accompany Treaty Doc. 104-5]
The Committee on Foreign Relations, to which was referred
the Treaty Between the United States of America and the
Government of the Republic of Hungary on Extradition, signed at
Budapest on December 1, 1994, having considered the same,
reports favorably thereon with one proviso, and recommends that
the Senate give its advice and consent to the ratification
thereof as set forth in this report and the accompanying
resolution of ratification.
I. Purpose
Modern extradition treaties (1) identify the offenses for
which extradition will be granted, (2) establish procedures to
be followed in presenting extradition requests, (3) enumerate
exceptions to the duty to extradite, (4) specify the evidence
required to support a finding of a duty to extradite, and (5)
set forth administrative provisions for bearing costs and legal
representation.
II. Background
On December 1, 1994, the President signed an extradition
treaty with Hungary. The Treaty was transmitted to the Senate
for its advice and consent to ratification on May 8, 1995. In
recent years the Departments of State and Justice have led an
effort to modernize U.S. bilateral extradition treaties to
better combat international criminal activity, such as drug
trafficking, terrorism and money laundering. The United States
is a party to approximately 100 bilateral extradition treaties.
According to the Justice Department, during 1995 131
individuals were extradited to the United States and 79
individuals were extradited from the United States.
The increase in international crime also has prompted the
U.S. government to become a party to several multilateral
international conventions which, although not themselves
extradition treaties, deal with international law enforcement
and provide that the offenses which they cover shall be
extraditable offenses in any extradition treaty between the
parties. These include: the Convention for the Suppression of
Unlawful Seizure of Aircraft (Hague), art. 8: the Convention to
Discourage Acts of Violence Against Civil Aviation (Montreal),
art. 8; the Protocol Amending the Single Convention on Narcotic
Drugs of 1961, art. 14 amending art. 36(2)(b)(I) of the Single
Convention; the Convention to Prevent and Punish Acts of
Terrorism Taking the Form of Crimes Against Persons and Related
Extortion that are of International Significance (Organization
of American States), art. 3; the Convention on the Prevention
and Punishment of Crimes against Internationally Protected
Persons, including Diplomatic Agents, art. 8; the International
Convention against the Taking of Hostages, art. 10; the
Convention on the Physical Protection of Nuclear Materials,
art. 11; and the United Nations Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (Vienna).
These multilateral international agreements are incorporated by
reference in the United States' bilateral extradition treaties.
III. Summary
a. general
An extradition treaty is an international agreement in
which the Requested State agrees, at the request of the
Requesting State and under specified conditions, to turn over
persons who are within its jurisdiction and who are charged
with crimes against, or are fugitives from, the Requesting
State. Extradition treaties can be bilateral or multilateral,
though until recently the United States showed little interest
in negotiating multilateral agreements dealing with
extradition.
The contents of recent treaties follow a standard format.
Article I sets forth the obligation of contracting states to
extradite to each other persons charged by the authorities of
the Requesting State with, or convicted of, an extraditable
offense. Article 2, sometimes referred to as a dual criminality
clause, defines extraditable offenses as offenses punishable in
both contracting states by prison terms of more than one year.
Attempts or conspiracies to commit an extraditable offense are
themselves extraditable. Several of the treaties provide that
neither party shall be required to extradite its own nationals.
The treaties carve out an exception to extraditable crimes for
political offenses. The trend in modern extradition treaties is
to narrow the political offense exceptions.
The treaties include a clause allowing the Requested State
to refuse extradition in cases where the offense is punishable
by death in the Requesting State, unless the Requesting State
provides assurances satisfactory to the Requested State that
the individual sought will not be executed.
In addition to these substantive provisions, the treaties
also contain standard procedural provisions. These specify the
kinds of information that must be submitted with an extradition
request, the language in which documents are to be submitted,
the procedures under which documents submitted are to be
received and admitted into evidence in the Requested State, the
procedures under which individuals shall be surrendered and
returned to the Requesting State, and other related matters.
b. major provisions
1. Extraditable offenses: The dual criminality clause
Article 2 contains a standard definition of what
constitutes an extraditable offense: an offense is extraditable
if it is punishable under the laws of both parties by a prison
term of at least one year. Attempts and conspiracies to commit
such offenses, and participation in the commission of such
offenses, are also extraditable. If the extradition request
involves a fugitive, it shall be granted only if the remaining
sentence to be served is more than six months.
The dual criminality clause means, for example, that an
offense is not extraditable if in the United States it
constitutes a crime punishable by imprisonment of more than one
year, but it is not a crime in the treaty partner or is a crime
punishable by a prison term of less than one year. In earlier
extradition treaties the definition of extraditable offenses
consisted of a list of specific categories of crimes. This
categorizing of crimes has resulted in problems when a specific
crime, for example drug dealing, is not on the list, and is
therefore not extraditable. The result has been that as
additional offenses become punishable under the laws of both
treaty partners the extradition treaties between them need to
be renegotiated or supplemented. A dual criminality clause
obviates the need to renegotiate or supplement a treaty when it
becomes necessary to broaden the definition of extraditable
offenses.
2. Extraterritorial offenses
In order to extradite individuals charged with
extraterritorial crimes (offenses committed outside the
territory of the Requesting State) such as international drug
traffickers and terrorists, provision must be made in
extradition treaties. The Hungary Treaty states that the
Requested State shall grant extradition for an offense
committed outside the Requesting State's territory if the
Requested State's laws provide that an offense committed
outside its territory is punishable in similar circumstances
(art. 2(4)). If the Requested State's laws do not provide that
an offense committed outside its territory is punishable in
similar circumstances, under the Hungary Treaty the Requested
State nevertheless has discretionary authority to grant
extradition (art. 2(4)).
In the proposed treaty an obligation to extradite depends
mostly on whether the Requested State also punishes offenses
outside its territory ``in similar circumstances.'' This, in
effect, appears to be a dual criminality clause applied to
extraterritorial offenses. The phrase ``in similar
circumstances'' is undefined in each of the treaties that have
such a requirement and in the Letters of Submittal from the
Department of State to the President. The phrase appears to be
sufficiently vague to give a reluctant Requested State ``wiggle
room'' to avoid its possible obligation to extradite
individuals for crimes committed outside its territory.
3. Political offense exception
In recent years the United States has been promoting a
restrictive view of the political offense exception in
furtherance of its campaign against terrorism, drug
trafficking, and money laundering. The political offense
exception in the Hungary Treaty is narrower than other U.S.
extradition treaties.
The Hungary treaty starts out with standard language that
extradition shall not be granted for political offenses (art. 4
(1)). It then goes on to list several categories of offenses
that are not considered political: a murder or other willful
crime against a head of state or a member of his or her family;
certain specified crimes, including murder, kidnapping, and
placing explosive devices; an offense for which both parties
have the obligation pursuant to a multilateral international
agreement to extradite the person sought or submit the case to
their authorities for prosecution; and an attempt or conspiracy
to commit any of the foregoing acts, or participation in the
commission of those acts. The first category of offenses not
considered political--a criminal attack on a head of state or
members of his family--is a carryover from older extradition
treaties.
The exclusion of certain violent crimes, (i.e. murder,
kidnapping, and others) from the political offense exception
has become standard in many U.S. extradition treaties,
reflecting the concern of the United States government and
certain other governments with international terrorism. The
Hungary Treaty does not contain such an exclusion in their
political offense exception.
The exclusion from the political offense exception for
crimes covered by multilateral international agreements, and
the obligation to extradite for such crimes or submit the case
to prosecution by the Requested State, is now a standard
exclusion and is contained in the proposed treaty. The
incorporation by reference of these multilateral agreements is
intended to assure that the offenses with which they deal shall
be extraditable under an extradition treaty. But, extradition
for such offenses is not guaranteed. A Requested State has the
option either to extradite or to submit the case to its
competent authorities for prosecution. For example, a Requested
State could refuse to extradite and instead declare that it
will itself prosecute the offender.
4. The death penalty exception
The United States and other countries appear to have
different views on capital punishment. Under the proposed
treaty a party may refuse extradition for an offense punishable
by the death penalty in the Requesting State if the same
offense is not punishable by the death penalty in the Requested
State, unless the Requesting State gives assurances
satisfactory to the Requested State that the death penalty will
not be imposed or carried out.
5. The extradition of nationals
The U.S. does not object to extraditing its own nationals
and has sought to negotiate treaties without nationality
restrictions. Many countries, however, refuse to extradite
their own nationals. U.S. extradition treaties take varying
positions on the nationality issue.
The Hungary Treaty contains the traditional nationality
clause providing that neither party is obligated to extradite
its own nationals, but that they may do so at their discretion
(art. 3). Upon a refusal to extradite, the Requested State may
be required by the Requesting State to submit the case to its
authorities for prosecution.\1\
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\1\ An article in the Washington Post, A25, of June 28, 1996,
reported that the Constitutional Court in Italy refused to allow the
extradition to the United States of an Italian-born U.S. citizen or
resident under the U.S.-Italy extradition treaty for a murder he
committed in the United States despite U.S. assurances he would not be
subject to the death penalty.
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6. Retroactivity
The proposed treaty states that it shall apply to offenses
committed before as well as after it enters into force (art.
22). These retroactivity provisions do not violate the
Constitution's prohibition against the enactment of ex post
facto laws which applies only to enactments making criminal
acts that were innocent when committed, not to the extradition
of a defendant for acts that were criminal when committed but
for which no extradition agreement existed at the time.
7. The rule of speciality
The rule of speciality (or specialty), which prohibits a
Requesting State from trying an extradited individual for an
offense other than the one for which he was extradited, is a
standard provision included in U.S. bilateral extradition
treaties, including the six under consideration. The Hungary
Treaty (art. 17) contains exceptions to the rule of specialty
that are designed to allow a Requesting State some latitude in
prosecuting offenders for crimes other than those for which
they had been specifically extradited.
8. Lapse of time
The Hungary Treaty contains rules that preclude extradition
of offenses barred by an applicable statute of limitations.
Extradition is barred if the statute of limitations has run
under the laws of the Requesting State, not the Requested State
(art. 6).
IV. Entry Into Force and Termination
a. entry into force
This Treaty shall enter into force upon the exchange of
instruments of ratification.
b. termination
This Treaty may be terminated by either Party, effective
six months after receipt of notice by a Party of the intention
of the other Party to terminate the Treaty.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed treaty on Wednesday, July 17, 1996. The hearing
was chaired by Senator Helms. The Committee considered the
proposed treaty on Wednesday, July 24, 1996, and ordered the
proposed treaty favorably reported with one proviso by voice
vote, with the recommendation that the Senate give its advice
and consent to the ratification of the proposed treaty.
VI. Committee Comments
The Committee on Foreign Relations recommended favorably
the proposed treaty. The Committee believes that the proposed
treaty is in the interest of the United States and urges the
Senate to act promptly to give its advice and consent to
ratification. In 1996 and the years ahead, U.S. law enforcement
officers increasingly will be engaged in criminal
investigations that traverse international borders. Certainly,
sovereign relationships have always been important to
prosecution of suspected criminals. The first recorded
extradition treaty dates as far back as 1280 B.C. under Ramses
II, Pharoah of Egypt. The United States entered into its first
extradition treaty in 1794 with Great Britain. Like these early
treaties, the basic premise of the treaties is to facilitate,
under specified conditions, the transfer of persons who are
within the jurisdiction of one nation, and who are charged with
crimes against, or are fugitives from, the nation requesting
extradition. Despite the long history of such bilateral
treaties, the Committee believes that these treaties are more
essential than ever to U.S. efforts to bring suspected
criminals to justice.
In 1995, 131 persons were extradited to the U.S. for
prosecution for crimes committed in the U.S., and the U.S.
extradited 79 individuals to other countries for prosecution.
After the Senate ratified an extradition treaty with Jordan in
1995, the U.S. Attorney General was able to take into custody
an alleged participant in the bombing of the World Trade
Center. His prosecution would not be possible without an
extradition treaty. Crimes such as terrorism, transshipment of
drugs by international cartels, and international banking fraud
are but some of the international crimes that pose serious
problems to U.S. law enforcement efforts. The Committee
believes that modern extradition treaties provide an important
law enforcement tool for combating such crimes and will advance
the interests of the United States.
The proposed resolution of ratification includes a proviso
that reaffirms that ratification of this treaty does not
require or authorize legislation that is prohibited by the
Constitution of the United States. Bilateral extradition
treaties rely on relationships between sovereign countries with
unique legal systems. In as much as U.S. law is based on the
Constitution, this treaty may not require legislation
prohibited by the Constitution.
VII. Explanation of Proposed Treaty
The following is the Technical Analysis of the Extradition
Treaty submitted to the Committee on Foreign Relations by the
Departments of State and Justice prior to the Committee hearing
to consider pending extradition treaties.
technical analysis of the extradition treaty between the united states
of america and hungary
On December 1, 1994, the United States signed a treaty on
extradition with the Republic of Hungary (``the Treaty''). In
recent years, the United States has signed similar treaties
with many other countries as part of an ongoing effort to
modernize our law enforcement relations. The Treaty is intended
to replace the current treaty in force between the two
countries, the Convention for the Mutual Delivery of Criminals,
Fugitives from Justice, in Certain Cases \2\ (``the 1856
Treaty''), which is the oldest United States extradition treaty
still in force.
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\2\ July 3, 1856, 11 Stat. 691, T.S. 9, 5 Bevans 211.
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It is anticipated that the Treaty will be implemented in
the United States pursuant to the procedural framework provided
by Title 18, United States Code, Section 3184 et seq. No new
implementing legislation will be needed. Hungary has internal
extradition legislation \3\ that will apply to United States
requests under the Treaty.
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\3\ See Act I of 1973, Criminal Procedure Code of the Hungarian
People's Republic, Sec. Sec. .389-393. The key sections of Hungarian
law that are germane to the interpretation and implementation of the
Treaty are discussed in more detail in this technical analysis.
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The following technical analysis of the Treaty was prepared
by the United States delegation that conducted the
negotiations.
Article 1--Obligation to extradite
This article, like the first article in every recent United
States extradition treaty, formally obligates each Contracting
Party to extradite to the other persons charged with or
convicted of extraditable offenses, subject to the provisions
of the Treaty.
Article 1 refers to charges brought by authorities ``in''
the Requesting State rather than ``of'' the Requesting State,
thereby obligating Hungary to extradite fugitives to the United
States for state and local prosecutions as well as federal
cases. The term ``found guilty'' is used instead of
``convicted'' because in Hungary, a person is not considered
convicted until a sentence is imposed, whereas in the United
States, a sentence ordinarily is not imposed until after a
presentence report is prepared and reviewed. The negotiators
intended to make it clear that the Treaty applies to persons
adjudged guilty who flee the jurisdiction prior to
sentencing.\4\
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\4\ See Stanbrook and Stanbrook, ``Extradition: The Law and
Practice'' 25-26 (1979).
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Article 2--Extraditable offenses
This article contains the basic guidelines for determining
what are extraditable offenses. The Treaty, like the recent
United States extradition treaties with Jamaica, Italy,
Ireland, Thailand, Sweden (Supplementary Convention), and Costa
Rica, does not list the offenses for which extradition may be
granted.
Paragraph 1 permits extradition for any offense punishable
under the laws of both Contracting Parties by deprivation of
liberty (i.e., imprisonment or other form of detention) for
more than one year or by a more severe penalty such as capital
punishment. Defining extraditable offenses in this manner
obviates the need to renegotiate the Treaty or supplement it if
both Contracting Parties pass laws dealing with a new type of
criminal activity or if the list inadvertently fails to cover
an important type of criminal activity punishable in both
Contracting Parties.
During the negotiations, the Hungarian delegation stated
that key offenses such as drug trafficking, including operating
a continuing criminal enterprise,\5\ money laundering, and
offenses under the RICO statutes \6\ are considered
extraditable under the Treaty.
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\5\ See 21 U.S.C. Sec. 848.
\6\ See 18 U.S.C. Sec. Sec. 1961-68.
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Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting to commit, or otherwise participating in, an
extraditable offense. Conspiracy charges are frequently used in
United States criminal cases, particularly those involving
complex transnational criminal activity, so it is especially
important that the Treaty be clear on this point. Hungary has
no general conspiracy statute like Title 18, United States
Code, Section 371. Therefore, paragraph 2 creates an exception
to the ``dual criminality'' rule of paragraph 1 by expressly
making conspiracy an extraditable crime. Similarly, this
paragraph makes the Hungarian offense of association to commit
an offense an extraditable offense.
Paragraph 3 reflects the intention of both Contracting
Parties to interpret the principles of this article broadly.
Judges in foreign countries often are confused by the fact that
many United States federal statutes require proof of certain
elements (such as use of the mails or interstate
transportation) solely to establish jurisdiction in United
States federal courts. Because these foreign judges know of no
similar requirement in their own criminal law, they
occasionally have denied the extradition of fugitives sought by
the United States on this basis. This paragraph requires that
such elements be disregarded in applying the dual criminality
principle. For example, it will ensure that Hungarian
authorities treat United States mail fraud charges \7\ in the
same manner as fraud charges under state laws, and view the
federal crime of interstate transportation of stolen property
\8\ in the same manner as unlawful possession of stolen
property. Paragraph 3 further requires a Requested State to
disregard differences in the categorization of the offense in
determining whether dual criminality exists, and to overlook
mere differences in the terminology used to define the offense
under the laws of each Contracting Party. A similar provision
is contained in all recent United States extradition treaties.
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\7\ See U.S.C. Sec. 1341.
\8\ See U.S.C. Sec. 2314.
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Paragraph 4 deals with the fact that many federal crimes
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes jurisdiction in our courts to hear
cases involving offenses committed outside the United States if
the crime was intended to, or did, have effects in this
country, or if the legislative history of the statute shows
clear Congressional intent to assert such jurisdiction.\9\ In
Hungary, however, the government's ability to prosecute
extraterritorial offenses is very different.\10\ Paragraph 4
therefore reflects Hungary's agreement to recognize United
States jurisdiction to prosecute offenses committed outside the
United States if Hungarian law permits it to prosecute similar
offenses committed outside Hungary in corresponding
circumstances. If the law of the Requested State does not
provide for such prosecution, paragraph 4 nevertheless permits
the executive authority of the Requested State to decide, at
its discretion, to grant the extradition. For the United
States, this decision is made by the Secretary of State, and
for Hungary, by the Minister of Justice. A similar provision
appears in several recent United States treaties.\11\
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\9\ Restatement (Third) of the Foreign Relations Law of the United
States Sec. 402 (1987); Blakesley, ``United States Jurisdiction over
Extraterritorial Crime,'' 73 J. Crim. L. & Criminology 1109 (1982).
\10\ For example, Hungary can prosecute its citizens for offenses
committed outside Hungary.
\11\ See Protocol Amending U.S.-Canada Extradition Treaty, Jan. 11,
1988, art. 1, T.I.A.S. No. --; Protocol Amending U.S.-Australia
Extradition Treaty, Sept. 4, 1990, art. III, T.I.A.S. No. --.
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Paragraph 5 states that when extradition is granted for an
extraditable offense, it shall also be granted for any other
offense for which all of the requirements for extradition are
met except for the requirement that the offense be punishable
by more than one year of imprisonment. For example, if Hungary
agrees to extradite to the United States a fugitive wanted for
prosecution on a felony charge, the United States will also be
permitted to obtain extradition for any misdemeanor offenses
charged, as long as those misdemeanors are also recognized as
criminal offenses in Hungary. Thus, the Treaty incorporates
recent United States extradition practice by permitting
extradition for misdemeanors committed by a fugitive when the
fugitive's extradition is granted for a more serious
extraditable offense. This practice is generally desirable from
the perspective of both the fugitive and the prosecuting
country in that it permits all charges against the fugitive to
be disposed of more quickly, thereby facilitating trials while
evidence is still fresh and permitting the possibility of
concurrent sentences. Similar provisions are found in recent
extradition treaties with Australia, Ireland, Italy, and Costa
Rica.
Some recent United States extradition treaties provide that
persons who have been convicted of an extraditable offense and
sentenced to imprisonment may be extradited only if at least a
certain specified portion of the sentence (often six months)
remains to be served on the outstanding sentence. The Treaty
contains no such requirement. Provisions of this kind are an
attempt to limit extradition to serious cases because of the
significant costs associated with the process. However, the
negotiators felt that the particular sentence imposed or
outstanding is not necessarily an adequate measure of the
seriousness of the crime.\12\ They preferred the exercise of
discretion and good judgment in considering the remainder of a
sentence to be served, not arbitrary limits imposed in the
terms of the Treaty, as the better approach to promote the
Treaty's goals. A similar provision is found in our extradition
treaties with other countries, including Australia, Canada,
Jamaica, New Zealand, and the United Kingdom.
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\12\ Cf. United States v. Clark, 470 F. Supp. 976, 978 (D. Vt.
1979) (``Leniency in sentencing does not give rise to a bar to
extradition''). Reliance on the amount of the sentence remaining to be
served can also produce anomalous results. For instance, a murderer who
escapes from custody with less than six months to serve on a sentence
can hardly resist extradition on the basis that murder is not a serious
offense.
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Article 3--Nationality
Paragraph 1 specifically states that each Contracting Party
has the discretionary power to extradite its own nationals
unless prohibited from doing so by internal legislation. This
paragraph, like the clause in article IV of the 1901 Treaty
that it replaces, is intended to permit the United States to
extradite its nationals to Hungary, in accordance with
established United States policy favoring such
extraditions.\13\ However, since Hungary is barred by its law
from extraditing Hungarian nationals,\14\ it is unlikely that
Hungary will actually surrender its nationals to the United
States under the Treaty unless Hungarian law is amended in the
future.
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\13\ See generally Shearer, ``Extradition in International Law''
110-14 (1970); 6 Whiteman, ``Digest of International Law'' 871-76
(1968). Our policy of drawing no distinction between nationals of the
United States and those of other countries in extradition matters has
been underscored by Congress in legislation. Title 18, United States
Code, Section 3196 authorizes the Secretary of State to extradite
United States citizens pursuant to treaties that permit but do not
expressly require surrender of citizens, as long as the other
requirements of the treaty are met. 18 U.S.C. Sec. 3196.
\14\ See Act IV of 1978, Criminal Code of the Hungarian People's
Republic, Sec. 9(1).
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Paragraph 2 requires that if the Requested State refuses
extradition solely on the basis of nationality, that State must
submit the case to its authorities for prosecution if asked to
do so by the Requesting State.
Similar provisions are found in many recent United States
extradition treaties.\15\
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\15\ See e.g., U.S.-Costa Rica Extradition Treaty, Dec. 4, 1982,
art. 8, T.I.A.S. No.--; U.S.-Mexico Extradition Treaty, May 4, 1978,
art. 9, 31 U.S.T. 5059, T.I.A.S. No. 9656.
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Article 4--Political and military offenses
Paragraph 1 prohibits extradition for political offenses.
This is a common provision in United States extradition
treaties.
Paragraph 2 describes several categories of offenses that
shall not be considered political offenses.
Paragraph 2(a) provides that the political offense
exception to extradition does not apply when there is a murder
or other willful crime against the life of a Head of State of a
Contracting Party, or a member of the head of State's family.
Paragraph 2(b) states that the political offense exception
does not apply to offenses for which both Contracting Parties
have the obligation, pursuant to a multilateral treaty,
convention or international agreement, either to extradite the
person sought or to submit the matter for prosecution. The
conventions to which this clause applies at present include the
Convention on Offenses and Certain Other Acts Committed on
Board Aircraft; \16\ the Convention for the Suppression of
Unlawful Seizures of Aircraft (Hijacking); \17\ the Convention
for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation (Sabotage); \18\ the Convention on the
Prevention and Punishment of Crimes Against Internationally
Protected Persons, including Diplomatic Agents; \19\ and the
International Convention Against the Taking of Hostages.\20\ In
addition, Hungary is expected to ratify the United Nations
Convention Against the Illicit Traffic in Narcotic Drugs and
Psychotropic Substances \21\ in the near future. In the
meantime, both the United States and Hungary are parties to the
Single Convention on Narcotic Drugs \22\ and the Amending
Protocol to the Single Convention; \23\ this provision of the
Treaty applies to both conventions.
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\16\ Sept. 14, 1963, 20 U.S.T. 2941, T.I.A.S. No. 6768; 704
U.N.T.S. 219.
\17\ Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192.
\18\ Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570.
\19\ Dec. 14, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532.
\20\ Dec. 17, 1979, T.I.A.S. No. 11081.
\21\ Dec. 20, 1988, T.I.A.S. No.--.
\22\ Mar. 30, 1961, 18 U.S.T. 1407, T.I.A.S. No. 6298, 520 U.N.T.S.
204.
\23\ Mar. 25, 1972, 26 U.S.T. 1439, T.I.A.S. No. 8118, 976 U.N.T.S.
3.
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Subparagraphs 2(c), (d) and (e) specify that the Requested
State shall not consider any of the following crimes to be
political offenses: murder, manslaughter or any other offense
involving substantial bodily harm; offenses involving
kidnapping or any form of unlawful detention, including
hostage-taking; and placement or use of a device, incendiary,
or destructive device capable of endangering life, of causing
substantial bodily harm, or of causing substantial property
damage. Thus, the Treaty is similar to recent United States
extradition treaties with the United Kingdom, Canada, Germany,
and Spain, in each of which the scope of the political offense
exception is substantially narrowed to eliminate its
application to certain crimes typically committed by
terrorists.
Paragraph 2(f) states that the political offense exception
does not apply to conspiracy or any type of association to
commit, attempt to commit, or participation in, the commission
or attempted commission of the foregoing offenses.
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State finds that
the request is politically motivated. This is consistent with
longstanding United States law and practice, under which the
Secretary of State alone has the discretion to determine
whether an extradition request is based on improper political
motivation.\24\ Similar provisions appear in many United States
extradition teeaties.\25\
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\24\ See Eain v. Wilkes, 641 F. 2d 504, 513-18 (7th Cir.), cert.
denied, 454 U.S. 894 (1981); Koskotas v. Roche, 740 F. Supp. 904 (D.
Mass. 1990), aff'd, 931 F. 2d 169 (1st Cir. 1991).
\25\ See U.S.-Jamaica Extradition Treaty, June 14, 1983, art.
III(3), T.I.A.S. No. --; U.S.-Spain Extradition Treaty, May 29, 1970,
art. 5(4), 22 U.S.T. 737, T.I.A.S. No. 7136, 796 U.N.T.S. 245; U.S.-
Netherlands Extradition Treaty, June 24, 1980, art. 4, T.I.A.S. No.
10733; and U.S.-Ireland Extradition Treaty, July 13, 1983, art. IV(c),
T.I.A.S. No. 10813.
---------------------------------------------------------------------------
Paragraph 4 provides that extradition may be denied by the
executive authority of the Requested State if the request
relates to an offense under military law that is not an offense
under ordinary criminal law.\26\
---------------------------------------------------------------------------
\26\ An example of such a crime is desertion. See, e.g., In re
Suarez-Mason, 694 F. Supp. 676, 703 (N.D. Cal. 1988).
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Article 5--Prior prosecution
This article will permit extradition in situations in which
the fugitive is charged with different offenses in each
Contracting Party arising out of the same basic transaction.
Paragraph 1 prohibits extradition if the fugitive has been
convicted or acquitted in the Requested State for the offense
for which extradition is requested. This is similar to language
found in many United States extradition treaties. The paragraph
also permits extradition to be denied if the charges in the
Requesting State have been ``dismissed by a court order with
binding effect. * * *'' This refers to the dismissal of charges
by the court ``with prejudice,'' a situation which raises
double jeopardy concerns. This paragraph will, however, permit
extradition in situations in which the activities of the
fugitive result in his being charged with different offenses in
both Contracting Parties arising out of the same basic
transaction.
Paragraph 2 makes it clear that neither Contracting Party
can refuse to extradite an offender to the other on the ground
that the Requested State's authorities declined to prosecute
the offender, or instituted criminal proceedings against the
offender and thereafter elected to discontinue the proceedings.
This provision was included because a decision by the Requested
State to forego prosecution, or to drop charges already filed,
may be the result of a failure to obtain sufficient evidence or
witnesses for trial, whereas the prosecution in the Requesting
State may not suffer from the same impediments. This provision
should enhance the ability to extradite to the jurisdiction
with the better chance of a successful prosecution.
Article 6--Lapse of time
This article states that extradition must be denied if at
the time the extradition request is received, the prosecution
of the offense or the enforcement of the penalty or detention
order is barred by lapse of time under the law of the
Requesting State. Similar provisions appear in several United
States extradition treaties. The reference to ``enforcement of
the penalty or of the detention order'' reflects the fact that
Hungary, like many civil law countries, has a statute of
limitations relating to such matters in addition to a statute
of limitation on prosecutions. 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.
Article 7--Capital punishment
Paragraph 1 permits the requested State to refuse
extradition in cases in which the offense for which extradition
is sought is punishable by death in the Requesting State, but
is not punishable by death in the Requested State, unless the
Requesting State provides assurances that the death penalty
will not be imposed, or, if imposed, will not be carried out.
Similar provisions are found in many recent United States
extradition treaties.\27\
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\27\ See e.g., U.S.-Netherlands Extradition Treaty, June 24, 1980,
art. 7, T.I.A.S. No. 10733; U.S.-Ireland Extradition Treaty, July 13,
1983, art. 6, T.I.A.S. No. 10813.
---------------------------------------------------------------------------
The Hungarian delegation insisted on this provision because
Hungary has abolished the death penalty and usually denies
extradition in cases in which the person sought might be
executed. However, the Hungarian delegation assured the United
States delegation that in an extraordinarily egregious case.
Hungary might be persuaded to grant extradition without
assurances pursuant to this paragraph.
Paragraph 2 provides that when the Requesting State gives
assurances in accordance with paragraph 1, the assurances shall
be respected, and the death penalty, if imposed, shall not be
carried out.
Article 8--Extradition procedures and required documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is generally
similar to articles in the most recent United States
extradition treaties.
Paragraph 1 requires that each formal request for
extradition be submitted through the diplomatic channel. A
formal extradition request may be preceded by a request for the
provisional arrest of the fugitive under article 11, and
provisional arrest request need not be initiated through
diplomatic channels if the requirements of article 11 are met.
Paragraph 2 outlines the information that must accompany
every request for extradition under the Treaty. Paragraph 3
describes the additional information needed when the person is
sought for trial in the Requesting State; paragraph 4 describes
the information needed, in addition to the requirements of
paragraph 2, when the person sought has already been tried and
found guilty in the Requesting State.
Most of the items listed in paragraph 2 enable the
Requested State to determine quickly whether extradition is
appropriate under the Treaty. For example, paragraph 2(e) calls
for ``a statement of the provisions of law describing any time
limit on the prosecution or enforcement of the penalty or the
detention order,'' thereby enabling the Requested State to
determine easily whether lapse of time would be a valid basis
for denying extradition under article 6.
Paragraph 3 requires that if the fugitive has not yet been
convicted of the crime for which extradition is requested, the
Requesting State must provide a copy of the outstanding arrest
warrant, the formal charges, and ``such evidence as would
justify the committal for trial of the person if the offense
had been committed in the Requested State.'' This is consistent
with fundamental extradition jurisprudence in the United
States, under which this language is interpreted to require
evidence of probable cause.\28\ The Hungarian delegation
assured the United States delegation that under Hungarian law,
the outstanding United States arrest warrant would constitute
sufficient evidence to satisfy this standard.
---------------------------------------------------------------------------
\28\ Courts applying Title 18, United States Code, Section 3184
have long required probable cause for international extradition.
Restatement (Third) of the Foreign Relations Law of the United States
Sec. 476 comment b (1987).
---------------------------------------------------------------------------
Paragraph 4 lists the information needed to extradite a
person convicted of an offense in the Requesting States. This
paragraph makes it clear that once a conviction has been
obtained, no showing of probable cause is required. In essence,
the fact of conviction speaks for itself, a position taken in
recent United States court decisions even absent a specific
treaty provision.\29\ Subsection (d) states that if the person
sought was found guilty in absentia, the documentation required
for extradition includes both proof of conviction and the
documentation required under paragraph 3. This is consistent
with the longstanding United States policy of requiring such
documentation in extradition proceedings of persons convicted
in absentia.
---------------------------------------------------------------------------
\29\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2d Cir. 1991); Clark, 470 F.
Supp. 976.
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Article 9--Admissibility of documents
This article governs the authentication procedures for
documentation intended for use in extradition proceedings.
Paragraph (a) states that evidence intended for use in
extradition proceedings shall be admissible if it is certified
by the principal diplomatic or consular officer of the
Requested State. This provision primarily accommodates the
authentication procedures required by United States law.\30\
---------------------------------------------------------------------------
\30\ See 18 U.S.C. Sec. 3190.
---------------------------------------------------------------------------
Paragraph (b) permits such evidence to be admitted if it is
authenticated in any manner accepted by the laws of the
Requested State. This provision ensures that relevant evidence
that would normally satisfy the evidentiary rules of the
Requested State is not excluded at the extradition hearing
simply because of an inadvertent error or omission in the
authentication process. This clause is especially important
because Hungary has no laws or regulations regarding
authentication of documents for extradition cases. It was
agreed that paragraph (b) ensures that documents in support of
United States extradition requests would not require special
authentication.
Article 10--Translation
This standard treaty provision requires that all documents
submitted in support of an extradition request be translated
into the language of the Requested State. Thus, requests from
Hungary to the United States would be translated into English
and United States requests to Hungary would be translated into
Hungarian.
Article 11--Provisional arrest
This article describes the process by which a person in the
Requested State may be arrested and detained while the formal
extradition request is being prepared by the Requesting State.
Paragraph 1 expressly provides that a request for
provisional arrest may be made directly between the United
States Department of Justice and the Hungarian Ministry of
Justice. The request may also be made via the Interpol channel.
Experience has shown that the ability to use such direct
channels in emergency situations can be crucial when a fugitive
is poised to flee a jurisdiction.
Paragraph 2 sets forth the information that the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must be
advised without delay of the outcome of the request and the
reasons for any denial.
Paragraph 4 provides that the fugitive may be released from
detention if the executive authority of the Requested State
does not receive the fully documented extradition request
within 60 days of the provisional arrest.\31\ When the United
States is the Requested State, the ``executive authority'' for
purposes of paragraph 4 would include the Secretary of State or
the United States Embassy in Budapest.\32\
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\31\ Under Section .390(2) of Hungary's extradition law, the
documents must be received within three months.
\32\ Clark, 470 F. Supp. 976.
---------------------------------------------------------------------------
Paragraph 4 states that the person arrested may be released
from custody if the documents are not received within the 60-
day period. However, the proceedings against the fugitive need
not be dismissed, as paragraph 5 makes it clear that the person
may be taken into custody again and the extradition proceedings
may be re-commenced when the formal request is presented at a
later date.
Article 12--Additional information
This article provides for the submission of additiona
information if the original request, including supporting
documentation, is viewed as insufficient by the Requested
State. It is intended to permit the Requesting State to cure
any defects in the request and accompanying materials which are
found by a court in the Requested State or by the attorney
acting on behalf of the Requesting State, and to permit the
court, in appropriate cases, to grant a reasonable continuance
to obtain, translate, and transmit additional materials. This
provision also states that the person sought may be released
form custody if the additional information is not received
within the time specified, but such release shall not preclude
a subsequent request on the same or different offenses at a
later time. The Requested State must notify the Requesting
State of such a release. A similar provision is found in other
United States extradition treaties. \33\
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\33\ See, e.g., U.S.-Costa Rico Extradiction Treaty, Dec. 4, 1982,
art. 10, T.I.A.S. No.--; U.S.-Italy Extradition Treaty, Oct. 13, 1983,
art. XI, T.I.A.S. No. 10837.
---------------------------------------------------------------------------
Article 13--Decision and surrender
This article requires the Requested State promptly to
notify the Requesting State of its decision on the extradition
request. If extradition is denied, the Requested State must
provide the reasons for the denial. If extradiction is granted,
the articles requires that the two Contracting Parties agree on
a time and place for surrender of the person. The Requesting
State must remove the fugitive within the time prescribed by
the law of the Requested State or the person may be discharged
from custody, and the Requested State may subsequently refuse
to extradite for the same offense. United States law requires
that surrender occur within two calendar months of the finding
that the offender is extraditable, \34\ or of the conclusion of
any litigation challenging that finding, \35\ whichever is
later. According to the Hungarian delegation, the law in
Hungary does not specify the time in which the surrender must
take place, as such matters are usually dealt with the
surrender decree signed by the Minister of Justice.
---------------------------------------------------------------------------
\34\ 18 U.S.C. Sec. 3188.
\35\ Jiminez v. United States District Court, 84 S. Ct. 14, 11 L.
Ed.2d 30 (1963) (decided by Goldberg, J., in chambers); see Liberto v.
Emery, 724 F.2d 23 (2d Cir. 1983); In re United States, 713 F. 2d 105
(5th Cir. 1983); see also Barrett v. United States, 590 F.2d 624 (6th
Cir. 1978).
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Article 14--Deferred and temporary surrender
Occasionally, a person sought of extradition may be facing
prosecution or serving a sentence on other charges in the
Requested State. This article provides a means for the
Requested State to defer extradition in such circumstances
until the conclusion of the proceedings against the person
sought and the service of any punishment imposed. Similar
provisions appear in our recent extradition treaties with the
Bahamas and Australia.
Paragraph 1 provides that the executive authority to the
Requested State may postpone the extradition proceedings
against a person who is being prosecuted or serving a sentence
in the Requested State until the conclusion of the prosecution
or the full execution of the punishment which has been imposed.
\36\ The provision permits the Requested State to postpone the
surrender of the person as well as the initiation of
extradiction proceedings against a person facing prosecution
proceedings against a person facing prosecution or serving a
sentence.
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\36\ Under United States law and practice, the Secretary of State
makes this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (a) (D.
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
Paragraph 2 provides for the temporary surrender of a
person wanted for prosecution in the Requesting State who is
being proscecuted or is serving a sentence in the Requested
State. A person temporarily transferred pursuant to the Treaty
will be returned to the Requested State at the conclusion of
the proceedings in the Requesting State. Such temporarily
surrender furthers the interests of justice in that it permits
trial of the person sought while evidence and witnesses are
more likely to be available, thereby increasing the likelihood
of a successful prosecution. Such transfer may also be
advantageous to the person sought in that: (1) it permits
resolution of the charges sooner; (2) subject to the laws in
each Contracting Party, it makes possible serving any sentence
in the Requested State concurrently with the sentence in the
Requested State; and (3) it permits defense against the charges
while favorable evidence is fresh and more likely to be
available. Similar provisions are found in many recent
extradiction treaties.
Article 15--Requests for extradition by several states
This article reflects the practice of many recent United
States extradition treaties to list some of the factors that
the executive authority of the Requested State must consider in
determining to which country a person should be surrendered
when reviewing requests from two or more countries for
extradition. For the United States, the Secretary of State
makes this decision.\37\
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\37\ Cheng Na-Yuet v. Hueston. 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd. 932 F.2d 977 (11th Cir. 1991).
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Article 16--Seizure and surrender of property
This article provides for the seizure by the Requested
State of all property--articles, instruments, objects of value,
documents, or other evidence--relating to the offense for which
extradition is requested, to the extent permitted by the
Requested State's internal law. The article also provides that
these objects shall be surrendered to the Requesting State upon
the granting of extradition or even if extradition cannot be
effected due to the death, disappearance, or escape of the
fugitive.
Paragraph 2 states that the Requested State may condition
its surrender of property in such a way as to ensure its return
as soon as practicable, and may defer surrender altogether if
the property is needed as evidence in the Requested State. The
obligation to surrender property under this article is
expressly made subject to due respect for the rights of third
parties in such property.
Article 17--Rule of specialty
This article covers the principle known as the rule of
specialty, which is a standard aspect of United States
extradition practice. Designed to ensure that a fugitive
surrendered for one offense is not tried for other crimes, the
rule of specialty prevents a request for extradition from being
used as a subterfuge to obtain custody of a person for trial or
service of a sentence on different charges that may not be
extraditable under the Treaty or properly documented at the
time that the request is granted.
Since a variety of exceptions to the rule have developed
over the years, this article codifies the current formulation
of the rule by providing that a person extradited under the
Treaty may only be detained, tried, or punished in the
Requesting State for (1) the offense for which extradition was
granted, or a differently denominated offense based on the same
facts, provided the offense is extraditable or is a lesser-
included offense; (2) offenses committed after the extradition;
or (3) other offenses for which the executive authority of the
Requested State consents.\38\ Paragraph 1(c)(ii) permits the
Contracting Party that is seeking consent to pursue new charges
to detain the defendant for 90 days while the Requested State
makes its determination on the application.
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\38\ In the United States, the Secretary of State has the authority
to consent to a waiver of the rule of specialty. See Berenguer v.
Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979).
---------------------------------------------------------------------------
Paragraph 2 prohibits the Requesting State from
surrendering the person to a third country for an offense
committed prior to extradition under the Treaty without the
consent of the Requested State.
Finally, paragraph 3 permits the detention, trial, or
punishment of an extraditee for additional offenses, or
extradition a third country, if the extraditee (1) leaves and
returns to the Requesting State, or (2) does not leave the
Requesting State within ten days of being free to do so.
Article 18--Simplified extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings in order to expedite
their return to the Requesting State. This article provides
that when a fugitive consents to return to the Requesting
State, the person may be returned to the Requesting State as
expeditiously as possible without further proceedings. The
negotiators anticipated that in such cases, there would be no
need for the formal documents described in article 8, or for
further judicial or administrative proceedings of any kind.
If the United States is the Requested State and the person
sought elects to return voluntarily to Hungary before the
United States Secretary of State signs a surrender warrant, the
process would not be deemed an ``extradition.'' Longstanding
United States policy is that the rule of specialty does not
apply to such cases. Therefore, the second sentence of article
18 states that the rule of specialty in article 17 will not
apply to cases in which this article is utilized.\39\
---------------------------------------------------------------------------
\39\ Cf. U.S.-Netherlands Extradition Treaty, June 24, 1980, art.
16, T.I.A.S. No. 10733.
---------------------------------------------------------------------------
Article 19--Transit
Paragraph 1 gives each Contracting Party the power to
authorize transit through its territory of persons being
surrendered the other Contracting Party by third countries, and
to hold such persons in custody during the period of transit.
Transit requests under this article, like provisional arrest
requests under article 11, may be transmitted via the Interpol
channel. Each request for transit must contain a description of
the person whose transit is proposed and a brief statement of
the facts of the case with respect to which the person is being
surrendered to the Requesting State.
Paragraph 2 describes the procedure each Contracting Party
should follow when seeking to transport a person in custody
through the territory of the other Contracting Party. Under
this provision, no advance authorization is needed if the
person in custody is in transit to a Contracting Party, is
travelling by aircraft, and no landing is scheduled in the
territory of the other Contracting Party. Should an unscheduled
landing occur, a request for transit may be required at that
time, and the Requested State may grant the request in its
discretion. The Treaty ensures that the person will be kept in
custody for up to 96 hours until a request for transit is
received and thereafter until its execution.
Article 20--Representation and expenses
Paragraph 1 provides that in extradition proceedings under
the Treaty, the Requested State shall advise, assist, and
appear in court on behalf of the Requesting State, and shall
represent the interests of the Requesting State by all legal
means within its power. The phrase ``all legal means within its
power'' was included because the law and practice of the United
States and Hungary differ on this issue.
The United States will represent Hungary in connection with
requests from Hungary for extradition before courts in the
United States. However, under Hungarian law, the Requesting
State is not a party to extradition litigation before Hungarian
courts and cannot be represented in such proceedings. The
Hungarian Public Prosecutor appears in court to represent the
interests of Hungary, but does not represent the interests of
the Requesting State and cannot be compelled to argue for
extradition if the Public Prosecutor believes that the court
should deny the request.\40\ The Hungarian delegation indicated
that there is no possibility that Hungary would modify this
aspect of its internal procedure. However, the delegations did
agree to revisions of article 20 to address this issue.
---------------------------------------------------------------------------
\40\ The Hungarian delegation assures the United States delegation
that it is almost inconceivable that the Public Prosecutor would ever
argue against extradition.
---------------------------------------------------------------------------
Paragraph 2 provides that the Requested State will bear all
expenses of extradition except those expenses relating to the
ultimate transportation of a fugitive to the Requesting State
and the translation of documents, which are to be paid by the
Requesting State. Cases may arise in which it may be necessary
for the Requesting State to retain private counsel to assist in
the presentation of the extradition request. It is anticipated
that in such cases, the fees of private counsel retained by the
Requesting State must be paid by the Requesting State.
Paragraph 3 provides that neither Contracting Party shall
make a pecuniary claim against the other in connection with
extradition proceedings, including the arrest, detention,
examination, and surrender of the fugitive. This includes any
claim by the fugitive for damages or reimbursement of legal
fees or other expenses occasioned by the execution of the
extradition request.
Article 21--Consultation
This article provides that the United States Department of
Justice and the Hungarian Ministry of Justice may consult with
each other directly or through Interpol channels with regard to
individual extradition cases and extradition procedures in
general. A similar provision is found in other United States
extradition treaties awaiting ratification.\41\
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\41\ See, e.g., U.S.-Belgium Extradition Treaty, Apr. 9, 1987, art.
19, T.I.A.S. No. --; U.S.-Switzerland Extradition Treaty, Nov. 11,
1990, art. 24, T.I.A.S. No. --; U.S.-Philippines Extradition Treaty,
Nov. 13, 1994, art. 18, T.I.A.S. No. --.
---------------------------------------------------------------------------
As discussed in connection with article 20, the Hungarian
Public Prosecutor appears in court during extradition
proceedings but does not represent the interests of the
Requesting State. The delegations agreed that article 21 will
provide the United States with the opportunity to consult with
the Public Prosecutor's Office to the extent necessary to make
certain that the attorney appearing in court understands the
United States case and intends to argue in favor of
extradition.
Article 22--Application
This Treaty, like most other United States extradition
treaties negotiated in the past two decades, is expressly made
retroactive and accordingly covers offenses that occurred
before the Treaty enters into force.
Article 23--Ratification, entry into force, and termination
This article contains standard treaty language providing
for the exchange of instruments of ratification at Washington,
D.C., and states that the Treaty will enter into force
immediately upon the exchange.
Paragraph 3 provides that the 1856 Treaty will cease to
have effect upon the entry into force of the Treaty, but
extradition requests pending before the courts when the Treaty
enters into force will nevertheless be processed to conclusion
under the 1956 Treaty. Article 18 of the Treaty, which deals
with simplified extradition, will be available in such
extradition proceedings. The paragraph also states that article
17 of the Treaty, which concerns the rule of specialty, will
apply to persons found extraditable under the 1856 Treaty.
Paragraph 4 contains standard treaty language describing
the procedure for termination of the Treaty by either
Contracting Party, and indicates that the termination shall
become effective six months after notice of termination has
been received.
VIII. Text of the Resolution of Ratification
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of The Treaty Between The Government of the United
States of America and The Government of the Republic of Hungary
on Extradition, signed at Budapest on December 1, 1994. The
Senate's advice and consent is subject to the following
proviso, which shall not be included in the instrument of
ratification to be signed by the President: Nothing in the
Treaty requires or authorizes legislation or other action by
the United States of America that is prohibited by the
Constitution of the United States as interpreted by the United
States.