[Senate Executive Report 114-10]
[From the U.S. Government Publishing Office]


114th Congress     }                                 {    Exec. Rept.
                                 SENATE
 2d Session        }                                 {      114-10

======================================================================



 
             EXTRADITION TREATY WITH THE REPUBLIC OF CHILE

                                _______
                                

                  July 13, 2016.--Ordered to be printed

                                _______
                                

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

                                 REPORT

                    [To accompany Treaty Doc. 113-6]

    The Committee on Foreign Relations, to which was referred 
the Extradition Treaty Between the United States of America and 
the Republic of Chile, signed at Washington on June 5, 2013 
(Treaty Doc. 113-6), having considered the same, reports 
favorably thereon with one declaration 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 Terminatrion................................3
 IV. Committee Action.................................................3
  V. Committee Comments...............................................3
 VI. Explanation of Extradition Treaty With Chile.....................3
VII. Text of Resolution of Advice and Consent to Ratification.........8

                               I. Purpose

    The purpose of the Extradition Treaty with Chile (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 Chile 
which was signed on April 17, 1900, and entered into force on 
June 26, 1902 (hereafter the ``1900 treaty'').
    The treaty before the Senate is designed to replace, and 
thereby modernize, the century-old extradition treaty with 
Chile. It was signed in June 2013 and submitted to the Senate 
on September 14, 2014. 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 1900 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 1900 
treaty. 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 on the ground that the person sought is a national of 
the Requested State.'' This contrasts with Article V of the 
1900 treaty, which does not obligate a party to extradite its 
nationals. Many countries of Latin America 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.
    The Treaty contains another provision 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 Treaty with Chile 
retains the political offense exception in Article 4(1), but 
provides that certain crimes shall not be considered political 
offenses, including murder, sexual assault, kidnapping or other 
crimes of violence, or offenses for which both parties have an 
obligation to extradite under a multilateral agreement, such as 
illicit drug trafficking or terrorism offenses.
    The Treaty contains a provision related to the death 
penalty. Under Article 6, 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.
    Finally, the terms of Article 16 Rule of Specialty clearly 
bar onward extradition unless the Requested state consents to 
the onward extradition or surrender. Furthermore, in his 
transmittal message of the Treaty to the Senate, the President 
reinforces this important protection by stating:


        Article 16(2) provides that a person extradited under 
        the Treaty may not be the subject of onward extradition 
        or surrender for any offense committed prior to 
        extradition, unless the Requested Party consents. This 
        provision would preclude the Chile from transferring to 
        a third State or an international tribunal a fugitive 
        that the United States surrendered to the Chile, unless 
        the United States consents.

                 III. Entry Into Force and Termination

    Under Article 22, the Treaty enters into force upon the 
exchange of the instruments of ratification. Under Article 23, 
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 briefing on May 23, 
2016, at which representatives of the Departments of State and 
Justice were present. The Committee considered the Treaty on 
June 23, 2016, 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 
declaration set forth in the resolution of advice and consent 
to ratification.

                         V. Committee Comments

    The Committee recommends favorably the Treaty with Chile. 
It modernizes a treaty that is over a century 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 Chile.

            VI. Explanation of Extradition Treaty With Chile

    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 
                                 Chile

    The Extradition Treaty between the Government of the United 
States and the Government of the Republic of Chile (``Treaty'') 
replaces an outdated extradition treaty between the countries 
signed in 1900.

    The following is an article-by-article description of the 
provisions of the Treaty:

                   ARTICLE 1--OBLIGATION TO EXTRADITE

    Article 1 obligates each Party to extradite to the other 
persons sought by the Requesting State for prosecution or for 
imposition or service of a sentence for an extraditable offense

                    ARTICLE 2--EXTRADITABLE OFFENSES

    This Article defines extraditable offenses. Under Article 
2(1), an offense is extraditable if it is punishable under the 
laws of both States by deprivation of liberty for a period of 
more than one year or by a more severe penalty. This 
formulation is consistent with the modern ``dual criminality'' 
approach. The new Treaty eliminates the requirement, found in 
the 1900 Extradition Treaty, that the offense be among those 
listed in the treaty. The dual criminality formulation obviates 
the need to renegotiate or supplement the Treaty as additional 
offenses become punishable under the laws of both States and 
ensures a comprehensive coverage of criminal conduct for which 
extradition may be sought.
    Article 2(2) further defines an extraditable offense to 
include an attempt or a conspiracy to commit, or participation 
in the commission of, an extraditable offense, if the offense 
of attempt, conspiracy, or participation is punishable under 
the laws of both States by deprivation of liberty for a period 
of more than one year or by a more severe penalty. Under the 
broad term of ``participation,'' the Treaty covers such 
offenses as aiding, abetting, counseling, or procuring the 
commission of an offense, at whatever stage of development of 
the criminal conduct and regardless of the alleged offender's 
degree of involvement.
    Additionally, Article 2(3) identifies a number of 
situations in which an offense will be extraditable despite 
potential differences in the criminal laws of both States. For 
instance, an offense shall be extraditable whether or not the 
laws of the Requesting and Requested States place the acts 
constituting the offense within the same category of offenses 
or describe the offense by the same terminology. In addition, 
an offense involving tax fraud, customs duties, and import/
export controls shall be extraditable regardless of whether the 
Requested State provides for the same sort of taxes, duties, or 
controls. This provision also makes explicit that an offense is 
extraditable where U.S. federal law requires the showing of 
certain matters merely for the purpose of establishing U.S. 
federal jurisdiction, including interstate transportation, or 
use of the mails or of other facilities affecting interstate or 
foreign commerce; this clarifies an important issue for the 
United States in seeking extradition for certain crimes.
    Article 2(4) addresses issues of territorial jurisdiction 
and requires the parties to grant extradition if the offense 
for which extradition is requested has been committed in whole 
or in part in the territory of the Requesting State. With 
regard to offenses committed outside the territory of the 
Requesting State, extradition shall be granted if the laws of 
the Requested State provide for the punishment of such an 
offense committed outside its territory under similar 
circumstances. If the laws of the Requested State do not so 
provide, the Requested State may still grant extradition at its 
discretion.
    Article 2(5) prescribes that, if extradition is 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 a maximum of one year's deprivation of liberty or 
less, provided that all other requirements for extradition are 
met.
    Article 2(6) provides that, where the extradition request 
is for service of a sentence of imprisonment, extradition may 
be denied if, at the time of the request, the remainder of the 
sentence to be served is less than six months.

                         ARTICLE 3--NATIONALITY

    Article 3 establishes that extradition and surrender shall 
not be refused based on the nationality of the person sought.

               ARTICLE 4--POLITICAL AND MILITARY OFFENSES

    Article 4 governs political and military offenses as a 
basis for the denial of extradition. As is customary in 
extradition treaties, extradition shall not be granted if the 
offense for which extradition is requested is a political 
offense.
    Article 4(2) enumerates offenses that shall not be 
considered to be political offenses, including murder, 
manslaughter, serious sexual assault, and kidnapping.
    Notwithstanding Article 4(2), Article 4(3) provides that 
extradition shall not be granted if the competent authority of 
the Requested State determines that the request was politically 
motivated.
    Under Article 4(4) the competent authority of the Requested 
State may refuse extradition for offenses under military law 
that are not offenses under ordinary criminal law. Desertion 
would be an example of such an offense.

                      ARTICLE 5--PRIOR PROSECUTION

    Article 5 addresses instances in which an individual has 
previously been prosecuted for the offense for which 
extradition is requested. Article 5(1) precludes extradition of 
a person who has been convicted or acquitted in the Requested 
State for the offense for which extradition is requested. Under 
Article 5(2), a person shall not be considered to have been 
convicted or acquitted where the authorities of the Requested 
State: (a) have decided not to prosecute the person sought for 
the acts for which extradition is requested; (b) have decided 
to discontinue any criminal proceedings against the person for 
those acts; or (c) are still proceeding against the person 
sought for those acts.

                         ARTICLE 6--PUNISHMENT

    Article 6 addresses punishment. When an offense for which 
extradition is sought is punishable by death under the laws of 
the Requesting State but not under the laws of the Requested 
State, under Article 6(1) the Requested State may grant 
extradition for the person sought on the condition that the 
death penalty shall not be imposed, or if imposed that it shall 
not be carried out. Except in instances in which the death 
penalty applies, Article 6(2) precludes the Parties from 
imposing conditions or refusing extradition on the basis that 
the penalty for the offense is greater in the Requesting State 
than in the Requested State.

                        ARTICLE 7--LAPSE OF TIME

    Article 7 provides that only the laws of the Requesting 
State regarding lapse of time shall be considered for purposes 
of deciding whether or not to grant extradition. The Requesting 
State's certification that the statute of limitations has not 
run is binding on the Requested State.

        ARTICLE 8--EXTRADITION PROCEDURES AND REQUIRED DOCUMENTS

    Article 8 specifies the procedures and documents required 
to support a request for extradition. Article 8(1) prescribes 
that all extradition requests be submitted through the 
diplomatic channel. Among several other requirements, Article 
8(3) establishes that extradition requests must be supported by 
such information as would provide a reasonable basis to believe 
that the person sought committed the offense(s) for which 
extradition is requested. Notably, this language mirrors the 
probable cause standard applied in U.S. criminal law.

                         ARTICLE 9--TRANSLATION

    Article 9 requires that all documents that the Requesting 
State submits pursuant to the Treaty must be accompanied by a 
translation into the language of the Requested State, unless 
otherwise agreed.

                 ARTICLE 10--ADMISSIBILITY OF DOCUMENTS

    Article 10 sets out the procedures for certification and 
admissibility of documents.

                     ARTICLE 11--PROVISIONAL ARREST

    Article 11 establishes the possibility of and procedures 
for requesting the provisional arrest of the person sought 
pending presentation of the formal extradition request. Article 
11(2) specifies the information that must accompany a 
provisional arrest request. Article 11(4)-(5) sets out 
procedures to be followed if the Requesting State is unable to 
provide the formal extradition request within the specified 
time period.

                   ARTICLE 12--DECISION AND SURRENDER

    Article 12 requires the Requested State to promptly notify 
the Requesting State of its decision on an extradition request. 
Under Article 12(2), if the Requested State denies extradition, 
it must provide an explanation of the reasons for the denial.

              ARTICLE 13--DEFERRED AND TEMPORARY SURRENDER

    Article 13 addresses deferred and temporary surrender of 
the person sought. Under Article 13(1), if extradition has been 
authorized, but the person sought is being proceeded against or 
is serving a sentence in the Requested State, the Requested 
State may defer the surrender of the person sought until the 
proceedings have been concluded or the sentence has been 
served. Alternatively, the Requested State may temporarily 
surrender the person to the Requesting State for the purpose of 
prosecution. Article 13(3) requires the person temporarily 
surrendered to be kept in custody while in the Requesting State 
and to be returned to the Requested State at the conclusion of 
proceedings.

      ARTICLE 14--REQUESTS FOR EXTRADITION MADE BY SEVERAL STATES

    Pursuant to Article 14, if the Requested State receives 
extradition requests for the same person from more than one 
State, either for the same offense or for different offenses, 
the competent authority of the Requested State shall determine 
to which State, if any, it will surrender that person. 
Additionally, this Article sets forth a non-exclusive list of 
factors to be considered by the Requested State in making its 
decision.

               ARTICLE 15--SEIZURE AND SURRENDER OF ITEMS

    Article 15 provides that, subject to certain conditions, 
the Requested State may seize and surrender to the Requesting 
State all items that are connected with the offense for which 
extradition is sought or that may be required as evidence in 
the Requesting State.

                     ARTICLE 16--RULE OF SPECIALTY

    Article 16 sets forth the rule of specialty, which 
prohibits a person extradited under the Treaty from being 
detained, tried, or punished in the Requesting State, except 
for any offense for which extradition was granted, or a 
differently denominated offense that is based on the same 
facts, carries the same or lesser penalty and is extraditable 
or is a lesser included offense. The rule of specialty does not 
bar such actions against the extradited person if the offense 
is committed after the extradition of the person, or the 
competent authority of the Requested State consents to the 
person's detention, trial or punishment for that offense. 
Article 16(2) provides that a person extradited under the 
Treaty may not be the subject of onward extradition or 
surrender for any offense committed prior to extradition, 
unless the Requested State consents. This provision would 
preclude Chile from transferring to a third State or an 
international tribunal a fugitive that the United States 
surrendered to Chile, unless the United States consents.

     ARTICLE 17--SIMPLIFIED EXTRADITION AND WAIVER OF EXTRADITION 
                              PROCEEDINGS

    Article 17 allows the Parties to conduct a simplified 
extradition procedure when the person sought consents to 
extradition or waives extradition before a judicial authority. 
Notably, the rule of specialty protections in Article 16 do not 
apply if the person sought waives extradition.

                          ARTICLE 18--TRANSIT

    Article 18 governs the transportation of a person being 
extradited between a party and a third State through the other 
Party's territory.

                ARTICLE 19--REPRESENTATION AND EXPENSES

    Article 19 requires the Requested State to advise, assist, 
appear in court on behalf of, and represent the interests of 
the Requesting State in any proceedings arising out of an 
extradition request. Additionally, the Requested State must 
bear all expenses incurred in that State in connection with the 
extradition proceedings, except for expenses related to 
translation and transportation of the person surrendered.

                        ARTICLE 20--CONSULTATION

    Article 20 provides that the U.S. Department of Justice and 
the Chilean Office of the Public Prosecutor may consult with 
each other directly in connection with individual cases and in 
furtherance of efficient implementation of the Treaty.

                        ARTICLE 21--APPLICATION

    Article 21 establishes that the Treaty shall only apply to 
offenses committed after the Treaty's entry into force.

             ARTICLE 22--RATIFICATION AND ENTRY INTO FORCE

    Article 22 notes that the Treaty is subject to ratification 
and shall enter into force upon the exchange of the instruments 
of ratification. Article 22(3) provides that, upon entry into 
force, the Treaty shall supersede the 1900 Extradition Treaty 
with respect to all requests involving offenses committed on or 
after the date of the Treaty's entry into force. The 1900 
Extradition Treaty shall continue to govern requests for 
extradition relating to offenses committed before the date of 
the Treaty's entry into force.

                        ARTICLE 23--TERMINATION

    Under Article 23, either Party may terminate the Treaty by 
giving written notice to the other Party through the diplomatic 
channel. The termination shall be effective six months after 
the date of such notice. Nevertheless, extradition requests 
made before the termination becomes effective shall be governed 
by the Treaty until final resolution of the request.

               VII. Text of the Resolution of Advice and 
                        Consent to Ratification

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

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION.

    The Senate advises and consents to the ratification of the 
Treaty Between the Government of the United States of America 
and the Government of the Republic of Chile, signed at 
Washington on June 5, 2013 (Treaty Doc. 113-6), subject to the 
declaration of section 2.

SEC. 2. DECLARATION.

    The advice and consent of the Senate under section 1 is 
subject to the following declaration:
          The Treaty is self-executing.

                                  [all]