[Senate Executive Report 107-13]
[From the U.S. Government Publishing Office]



107th Congress                                               Exec. Rpt.
 2nd Session                 SENATE                          107-13
======================================================================
 
                   EXTRADITION TREATY WITH LITHUANIA

                                _______
                                

                October 17, 2002.--Ordered to be printed

                                _______
                                

          Mr. Biden, from the Committee on Foreign Relations,
                        submitted the following

                              R E P O R T

                    [To accompany Treaty Doc. 107-4]

    The Committee on Foreign Relations, to which was referred 
the Extradition Treaty Between the Government of the United 
States of America and the Government of the Republic of 
Lithuania, signed at Vilnius on October 23, 2001 (Treaty Doc. 
107-4), having considered the same, reports favorably thereon 
with one condition 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 advice and 
consent to ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Summary and Discussion of Key Provisions.........................1
III. Entry Into Force and Termination.................................2
 IV. Committee Action.................................................3
  V. Committee Comments...............................................3
 VI. Explanation of Extradition Treaty with Lithuania.................3
VII. Text of Resolution of Advice and Consent to Ratification.........7

                               I. Purpose

    The purpose of the Extradition Treaty with Lithuania 
(hereafter ``the Treaty'') is to impose mutual obligations to 
extradite fugitives at the request of a party subject to 
conditions set forth in the Treaty.

             II.  Summary and Discussion of Key Provisions

    The United States is currently a party to over 100 
bilateral extradition treaties, including a treaty with 
Lithuania. That treaty was signed and entered into force in 
1924 (43 Stat. 1835), and amended by a Supplementary Treaty 
signed in 1934 (49 Stat. 3077) (hereafter the ``1924 treaty'').
    The treaty before the Senate is designed to replace, and 
thereby modernize, the treaty with Lithuania. It was signed in 
October 2001 and submitted to the Senate on May 7, 2002.
    In general, the Treaty follows a form used in several other 
bilateral extradition treaties approved by the Senate in recent 
years. It contains two important features which are not in the 
1924 treaty.
    First, the Treaty contains a ``dual criminality'' clause 
which requires a party to extradite a fugitive whenever the 
offense is punishable under the laws of both parties by 
deprivation of liberty for a maximum period of more than one 
year. This provision replaces the list of offenses specifically 
identified in the 1924 treaty with Lithuania. This more 
flexible provision ensures that newly-enacted criminal offenses 
are covered by the Treaty, thereby obviating the need to amend 
it as offenses are criminalized by the parties.
    Second, the Treaty provides for extradition of nationals. 
Specifically, Article 3 states that extradition ``shall not be 
refused based on the nationality of the person sought.'' This 
contrasts with the 1924 treaty, which does not obligate a party 
to extradite its nationals. Many countries in Europe have, 
historically, refused to extradite nationals. The United 
States, by contrast, does extradite its nationals, and has long 
attempted to convince extradition partners to do likewise. 
Inclusion of this provision in the Treaty with Lithuania is an 
important step forward in ensuring that fugitives who commit 
crimes in the United States are tried in U.S. courts.
    The Treaty contains two other provisions worth noting.
    Consistent with U.S. policy and practice in recent years, 
the Treaty narrows the political offense exception. The 
political offense exception (an exception of long-standing in 
U.S. extradition practice) bars extradition of an individual 
for offenses of a ``political'' nature. The 1924 treaty 
contains such an exception in Article III, though it provides 
that murder or attempted murder of a Head of State or a member 
of his family shall not be considered a political offense. The 
Treaty before the Senate retains the political offense 
exception (and the Head of State exception to the exception) in 
Article 4. Several other exceptions to the political offense 
exception are added (see paragraph 2(c) through (f) of Article 
4).
    The Treaty also contains a provision related to the death 
penalty. Under Article 7, when extradition is sought for an 
offense punishable by death in the Requesting State and is not 
punishable by death in the Requested State, the Requested State 
may refuse extradition unless the Requesting State provides an 
assurance that the person sought for extradition will not be 
executed. This provision is found in many U.S. extradition 
treaties, as many treaty partners do not impose the death 
penalty under their laws, and object to its application to 
fugitives whom they extradite to the United States.

                 III. Entry Into Force and Termination

    Under Article 22, the Treaty enters into force upon the 
exchange of the instruments of ratification. Either party may 
terminate the treaty on written notice; termination will be 
effective six months after the date of such notice.

                          IV. Committee Action

    The Committee reviewed the Treaty at a public hearing on 
September 19, 2002, receiving testimony from representatives of 
the Departments of State and Justice (S. Hrg. 107-721). The 
Committee considered the Treaty on October 8, 2002, and ordered 
it favorably reported by voice vote, with the recommendation 
that the Senate give its advice and consent to the ratification 
of the Treaty subject to the condition set forth in the 
resolution of advice and consent to ratification.

                         V. Committee Comments

    The Committee recommends favorably the Treaty with 
Lithuania. It modernizes a treaty which is nearly 80 years old, 
and provides a more flexible ``dual criminality'' provision 
which will incorporate a broader range of criminal offenses 
than is covered under the current treaty with Lithuania.
    Following negotiation of the Rome Statute on the 
International Criminal Court in 1998, the Committee 
recommended, in the consideration of extradition treaties, that 
the Senate include in its resolutions of advice and consent an 
understanding stating that the Rule of Speciality would bar the 
retransfer of a fugitive to the International Criminal Court 
without the consent of the United States. This understanding 
also provides that the United States would not provide such 
consent unless it becomes a party to the Court under Article II 
of the U.S. Constitution. The Rome Statute has now entered into 
force. Inclusion of such an understanding in the resolution of 
advice and consent is unnecessary in this instance, however, 
because the Treaty itself specifically bars such a retransfer. 
Article 16(2) provides that a person extradited under the 
Treaty may not be extradited to a third state or extradited or 
surrendered to an international tribunal for any offense 
committed prior to extradition unless the Requested State 
consents.
    The Committee notes that the State Department expects that 
parental child abduction will be an extraditable offense under 
the Treaty. The Committee strongly urges the Departments of 
Justice and State to seek extradition in such cases with 
Lithuania.

          VI. Explanation of Extradition Treaty with Lithuania

    What follows is a technical analysis of the Treaty prepared 
by the Departments of State and Justice.

Technical Analysis of the Extradition Treaty between the Government of 
  the United States of America and the Government of the Republic of 
                               Lithuania

    On October 23, 2001, the United States signed an 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of Lithuania. 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. Lithuania will 
enact the Treaty pursuant to its own domestic laws.
    The Office of International Affairs, Criminal Division, 
United States Department of Justice, and the Office of the 
Legal Adviser, United States Department of State, prepared the 
following technical analysis of the new Treaty based on their 
participation in its negotiation.
    As negotiated, the text of the Extradition Treaty between 
the United States and Lithuania substantially conforms to 
modern extradition treaties recently concluded by the United 
States, except as noted below.

                   Article 1--Obligation to Extradite

    This article provides that the Parties agree to extradite 
to each other, pursuant to the provisions of this Treaty, 
persons whom the authorities in the Requesting State have 
charged with or convicted of an extraditable offense. During 
the negotiations, the Lithuanian delegation confirmed that the 
term ``convicted'' means found guilty under the laws of 
Lithuania. Moreover, under Lithuanian law, a defendant is 
sentenced at the time he is found guilty. The U.S. delegation 
explained that under U.S. law, there are separate proceedings 
for the prosecution and sentencing of a defendant. The 
Lithuanian delegation confirmed that a fugitive can be 
extradited when he has been found guilty but has not been 
sentenced.

                    Article 2--Extraditable Offenses

    Article 2(1)--During the negotiations, the Lithuanian 
delegation confirmed that extraditable offenses include 
narcotics, terrorism, racketeering (RICO), and money laundering 
offenses. The Lithuanian delegation also confirmed that the 
treaty covers securities fraud, tax fraud, parental kidnaping, 
antitrust offenses, environmental protection offenses, 
conspiracy, and escape. The Lithuanian delegation pointed out 
that while some export control offenses may not be extraditable 
offenses, Lithuania will look for a violation of other penal 
laws to find the conduct is extraditable. Lithuania will 
extradite a fugitive who flees prosecution or escapes from 
detention so long as the prosecution or sentencing occurred no 
later than 15 years from the time the crime is committed. 
However, under Lithuanian law, there is no statute of 
limitations bar to the prosecution or sentencing of persons 
charged with genocide and war crimes. The Lithuanian delegation 
confirmed that extradition shall be granted irrespective of the 
amount of time remaining to be served, even if it is only a few 
months.
    Article 2(2)--The Lithuanian delegation confirmed that, in 
general, an offense shall also be an extraditable offense if it 
consists of an attempt or a conspiracy, or participation in the 
commission of any offense encompassed by paragraph 1. Under 
Lithuanian law, the offense of abetting is applicable to all 
crimes. However, aiding a crime only pertains to severe 
felonies.

                         Article 3--Nationality

    Article 3, which contains language standard to many recent 
U.S. extradition treaties, was the basis for extensive 
discussion between the U.S. and Lithuanian delegations. The 
Lithuanian delegation noted that there is no word in the 
Lithuanian language for ``nationality.'' The closest word to 
``nationality'' in the Lithuanian language is ``citizenship.'' 
Consequently, the delegations agreed that the English text of 
the Treaty will use the word ``nationality'' and the Lithuanian 
text will use the word ``citizenship.'' This provision 
overcomes the pre-existing legal barrier to the extradition of 
Lithuanian citizens. There is no barrier to extraditing non-
citizens.

                    Article 5(1)--Prior Prosecution

    The Lithuanian delegation expressed concern that the terms 
``convicted or acquitted'' used in the first sentence are not 
broad enough to cover all matters under Lithuanian law. 
Therefore, the following sentence was added to provide a 
broader definition: ``Conviction or acquittal also means, under 
Lithuanian law, an agreed resolution approved by a court with 
final and binding effect.''

                 Article 9--Admissibility of Documents

    The delegations discussed the procedures required by their 
respective governments for the admissibility of extradition 
documents. They agreed that when the United States requests the 
extradition of a fugitive located in Lithuania, the documents 
must be ``certified by the signature and official seal of the 
executive authority of Requesting State.'' In instances in 
which Lithuania requests the extradition of a fugitive, the 
documents must be ``certified by the principal diplomatic or 
principal consular officer of the United States resident in the 
Republic of Lithuania, as provided by the extradition laws of 
the United States.''

                   Article 11(1)--Provisional Arrest

    Paragraph 1 provides that, in urgent cases, the United 
States Department of Justice and the Office of the Public 
Prosecutor or the facilities of the International Criminal 
Police Organization (Interpol) may transmit provisional arrest 
requests. The Lithuanian delegation noted that urgent 
provisional arrest requests should be perfected through the 
diplomatic channel. Thus, the United States agreed that in 
circumstances where the provisional arrest request is 
transmitted directly to the Office of the Public Prosecutor or 
Interpol, the United States will also provide a copy of the 
provisional arrest request, at a later time, through the 
diplomatic channels.

                 Article 12(1)--Decision and Surrender

    The delegations agreed that notification of the Requested 
State's decision on the request for extradition should be 
provided through diplomatic channels. They also agreed to 
provide informal notification between the Department of Justice 
and the Office of the Public Prosecutor.

            Article 13(1)--Temporary and Deferred Surrender

    This article provides that, 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 
State may temporarily surrender the person sought by the 
Requesting State for the purpose of prosecution. The 
delegations agreed that, for purposes of this article, the term 
``prosecution'' shall encompass standing trial, entering a plea 
of guilty, or receiving a sentence. Moreover, the delegations 
agreed that in instances where the Requested State agrees to 
temporarily surrender the person sought, the Requesting State 
agrees that the person shall remain in custody unless the 
Requested State provides written approval for release on bail 
or some other form of constructive custody.

               Article 14--Requests for Extradition Made
                           by Several States

    Article 14 contains standard language that makes clear that 
if the Requested State receives requests from the Requesting 
State and from any other State or States for the extradition of 
the same person, either for the same offense or for different 
offenses, the executive authority of the Requested State shall 
determine to which State, if any, it will surrender the person. 
The United States delegation noted that the decision by the 
United States will be made by the Department of State, in 
consultation with the Department of Justice. The Lithuanian 
delegation noted that the decision by Lithuania will be made by 
the Ministry of Justice, in consultation with the Office of the 
Prosecutor.
    The delegations discussed relevant factors that shall be 
considered in making a decision regarding extradition where 
requests are made by several states. In accordance with 
paragraph c, the nationality of the person sought will be 
considered in determining the relevance of the respective 
interests of the Requesting States. Moreover, in paragraph e, 
the English text will use the term ``nationality'' of the 
victim, and the Lithuanian text will use the term 
``citizenship'' of the victim. The delegations confirmed that 
these terms have the same meaning, as explained in Article 3 
above.

                   Article 16(2)--Rule of Speciality

    In order to ensure that this provision encompasses 
surrenders other than through extradition, the delegations 
agreed that the provision would read as follows: ``A person 
extradited under this Treaty may not be extradited to a third 
State or extradited or surrendered to an international tribunal 
for any offenses committed prior to extradition unless the 
Requested State consents.''

        Article 17--Consent to Waiver of Extradition Proceedings

    The delegations agreed that the Rule of Specialty does not 
apply when the person sought consents to be surrendered. The 
Lithuania delegation confirmed that such a consent can be made 
prior to the receipt of the formal documentation. They 
indicated that Lithuanian law requires a consent to be made in 
writing.

                         Article 18(2)--Transit

    In the unlikely event that either Party needs to invoke 
Article 18(2) to make an unscheduled landing on the territory 
of the other State, a request for transit must be received 
within 48 hours of the unscheduled landing. Typically, the 
language of this provision provides for 96 hours, however, 
under Lithuanian law, a person cannot he detained for more than 
48 hours without consent of the court.

                        Article 20--Consultation

    The Parties agreed that they would meet and consult with 
each other once a year in connection with the processing of 
individual cases and in furtherance of efficient implementation 
of this Treaty.

      Article 22--Ratification, Entry into Force, and Termination

    The Parties agreed, in general, to the standard language of 
this provision. However, the Lithuanian delegation indicated 
that an additional sentence was necessary to clarify the status 
of requests submitted to the Ministry of Justice under the old 
Treaty, but not yet submitted to the courts prior to the entry 
into force of the new Treaty. The Lithuanian delegation feared 
that without further clarification, their courts would rely on 
the outdated Treaty. Thus, the delegations agreed to add the 
following sentence at paragraph 4: ``With respect to any 
extradition proceedings in which the request for extradition 
was received by the Requested State but not submitted to its 
courts before the entry into force of this Treaty, the 
Requesting State, after entry into force of this Treaty, may 
amend or supplement the request for extradition as necessary in 
order for it to be submitted to the courts of the Requested 
State under this Treaty.''

     VII. Text of Resolution of Advice and Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE EXTRADITION TREATY 
                    WITH LITHUANIA, SUBJECT TO A CONDITION.

    The Senate advises and consents to the ratification of the 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of Lithuania, 
signed at Vilnius on October 23, 2001 (Treaty Doc. 107-4; in 
this resolution referred to as the ``Treaty''), subject to the 
condition in section 2.

SEC. 2. CONDITION.

    The advice and consent of the Senate under section 1 is 
subject to the condition that nothing in the Treaty requires or 
authorizes legislation or other action by the United States 
that is prohibited by the Constitution of the United States as 
interpreted by the United States.

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