[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.
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