[Senate Executive Report 114-9]
[From the U.S. Government Publishing Office]


114th Congress     }                                 {     Exec. Rept.
                                 SENATE
 2d Session        }                                 {        114-9

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



 
             EXTRADITION TREATY WITH THE DOMINICAN REPUBLIC

                                _______
                                

                  July 13, 2016.--Ordered to be printed

                                _______
                                

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

                                 REPORT

                   [To accompany Treaty Doc. 114-10]

    The Committee on Foreign Relations, to which was referred 
the Extradition Treaty Between the United States of America and 
the Dominican Republic, signed at Santo Domingo on January 12, 
2015 (Treaty Doc. 114-10), 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 Termination.................................3
 IV. Committee Action.................................................3
  V. Committee Comments...............................................3
 VI. Explanation of Extradition Treaty with the Dominican Republic....3
VII. Text of Resolution of Advice and Consent to Ratification........10

                               I. Purpose

    The purpose of the Extradition Treaty with the Dominican 
Republic (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 the 
Dominican Republic which was signed on June 19, 1909 (hereafter 
the ``1909 Treaty'').
    The treaty before the Senate is designed to replace, and 
thereby modernize, the century-old extradition treaty with the 
Dominican Republic. It was signed on January 12, 2015 and 
submitted to the Senate on February 10, 2016. 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 1909 
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 1909 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 based on the nationality of the person sought.'' This 
contrasts with Article VIII of the 1909 treaty, which excepts 
the obligation by 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 several 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) under Article III of the 1909 Treaty bars 
extradition of an individual for offenses of a ``political'' 
nature and ``acts connected with such crimes or offenses''. The 
new Treaty with the Dominican Republic retains the political 
offense exception in Article 4, but provides that certain 
crimes shall not be considered political offenses, including 
violent crimes such as murder, manslaughter, inflicting 
grievous bodily harm, or crimes of sexual assault, crimes such 
as kidnapping or hostage taking, crimes related to explosives 
or the use of radiological or chemical agents capable of 
endangering life or causing substantial bodily harm or property 
damage or offenses for which both parties have an obligation to 
extradite under a multilateral agreement. Nevertheless, the 
Executive Authority of each Party retains discretion under 
Article 4 to refuse extradition upon a determination that the 
extradition request is politically motivated. The Executive 
Authority may also refuse extradition for offenses under 
military law that are not offenses under criminal law.
    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 Treaty, under Article 15(2) ``Rule of 
Specialty'', provides that a person extradited under this 
Treaty may not be the subject of onward extradition or 
surrender for any offense committed prior to extradition unless 
the competent authority of the Requested Party consents.

                 III. Entry Into Force And Termination

    Under Article 21, the Treaty enters into force upon the 
exchange of the instruments of ratification, replacing the 1909 
Treaty which ``shall cease to have any effect as between the 
Parties'' with the exception of pending requests under the 1909 
Treaty. 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 the 
Dominican Republic. 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 the 
Dominican Republic.
    Following negotiation of the Rome Statute on the 
International Criminal Court in 1998, the Committee has 
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 Specialty would bar the 
retransfer of a fugitive to the International Criminal Court 
without the consent of the United States as the United States 
has not ratified the Rome Statute.
    As noted above, the terms of Article 15 Rule of Specialty 
under Dominican Republic Treaty clearly bars 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:


        Similarly, the Article 15(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 competent 
        authority of the Requested Party consents. This 
        provision would preclude the Dominican Republic from 
        transferring to a third State or an international 
        tribunal a fugitive that the United States surrendered 
        to the Dominican Republic, unless the United States 
        consents.

              VI. Explanation of Extradition Treaty with 
                         the Dominican Republic

    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 Dominican 
                                Republic

    The Extradition Treaty between the Government of the United 
States and the Government of the Dominican Republican 
(``Treaty'') replaces an outdated extradition treaty between 
the countries signed in 1909.
    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 Party for prosecution or for 
imposition or service of a sentence for an extraditable offense

                    ARTICLE 2--EXTRADITABLE OFFENSES

    Article 2 defines extraditable offenses. Under Article 
2(1), an offense is extraditable if it is punishable under the 
laws of both Parties 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 1909 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 Parties 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 Parties 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, as well as being an accessory to 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 Parties. For 
instance, an offense shall be extraditable whether or not the 
laws of the Requesting and Requested Parties 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 or tax evasion, custom duties, 
or import/export controls shall be extraditable regardless of 
whether the Requested Party provides for the same sort of 
taxes, duties, or controls. This provision also makes explicit 
that an offense is extraditable where United States 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 requesting extradition 
for certain federal crimes.
    Article 2(4) addresses issues of territorial jurisdiction 
and specifies that an offense shall be extraditable regardless 
of where the act or acts constituting the offense was 
committed.
    Article 2(5) prescribes that, if extradition is granted for 
an extraditable offense, it shall 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 shall not be refused 
based on the nationality of the person sought.

               ARTICLE 4--POLITICAL AND MILITARY OFFENSES

    As is customary in extradition treaties, Article 4 governs 
political and military offenses as a basis for the denial of 
extradition. Article 4(1) states generally that extradition 
shall not be granted if the offense for which extradition is 
requested is a political offense.
    Article 4(2) describes five categories of offenses that 
shall not be considered to be political offenses. This list of 
exceptions were included in the extradition treaty between the 
United States and Chile (signed 2013) and is slightly broader 
than similar lists that appear in other, modern treaties, 
including those with Hungary (signed 1994), Poland (signed 
1997), the United Kingdom (signed 2003), Bulgaria (signed 2007) 
and Romania (signed 2007). In addition to offenses that involve 
the possession, placement, use or threatened use of an 
explosive, incendiary or destructive device, the exception at 
Article 4(2)(d) also includes biological, chemical or 
radiological agents when such agent is capable of endangering 
life or causing substantial bodily harm or substantial property 
damage. Further, Article 4(2)(e) makes clear that aiding or 
abetting another person to commit, attempt to commit or 
participate in the commission of such offenses also is excluded 
from the political offense exception. This slight expansion of 
the political offense exception is in keeping with a major 
priority of the United States to ensure that an overbroad 
definition of political offense not impede the ability to 
extradite terrorists.
    Notwithstanding Article 4(2), Article 4(3) provides that 
extradition shall not be granted if the competent authority of 
the Requested Party determines that the request was politically 
motivated.
    Under Article 4(4) the executive authority of the Requested 
Party 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 AND LAPSE OF TIME

    Article 5 addresses denial of extradition in instances in 
which an individual has previously been prosecuted for the 
offense for which extradition is requested, as well as denial 
for lapse of time.
    Article 5(1) precludes extradition of a person who has been 
convicted or acquitted in the Requested Party for the offense 
for which extradition is requested. Under Article 5(2), a 
person shall not be considered to have been convicted or 
acquitted when the authorities of the Requested Party: (a) have 
decided not to proceed against 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 investigating or proceeding 
against the person sought for those acts. Article 5(3) provides 
that only the laws of the Requesting Party regarding lapse of 
time shall be considered for purposes of deciding whether or 
not to grant extradition. In this regard, the Requested Party 
is bound by the statement of the Requesting Party that the 
statute of limitations has not run.

                         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 Party but not under the laws of the Requested 
Party, under Article 6(1) the Requested Party may refuse 
extradition of the person sought unless the Requesting Party 
provides assurances that the death penalty shall not be imposed 
or, if for procedural reasons the Requesting Party cannot 
provide that assurance, if imposed, the death penalty shall not 
be carried out. If the Requesting Party provides such an 
assurance, the Requested Party shall grant extradition and the 
Requesting Party shall comply with the assurance. Except in 
instances in which the death penalty applies, Article 6(2) 
precludes the Parties from refusing extradition on the basis 
that the term of imprisonment for the offense is greater in the 
Requesting Party than in the Requested Party. This provision 
was included to ensure that extradition was not limited in 
cases in which the offense was eligible for life imprisonment 
as a maximum offense in one Party but not the other.

        ARTICLE 7--EXTRADITION PROCEDURES AND REQUIRED DOCUMENTS

    Article 7 specifies the procedures and documents required 
to support a request for extradition. Article 7(1) prescribes 
that all extradition requests be submitted through the 
diplomatic channel. Among several other requirements, Article 
7(3)(c) 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 7(6) permits the submission of additional information 
to enable the Requested Party to decide on the extradition 
request.

                 ARTICLE 8--ADMISSIBILITY OF DOCUMENTS

    Article 8 sets out the procedures for the certification and 
admissibility of documents in extradition proceedings.

                         ARTICLE 9--TRANSLATION

    Article 9 requires that all documents that the Requesting 
Party submits pursuant to the Treaty be accompanied by an 
official translation into the language of the Requested Party, 
unless otherwise agreed in exceptional circumstances.

                     ARTICLE 10--PROVISIONAL ARREST

    Article 10 provides that the Requesting Party may request 
the provisional arrest of fugitives and sets forth the 
procedures for making such a request pending presentation of 
the formal extradition request. Article 10(2) specifies the 
information that must accompany a provisional arrest request. 
Article 10(3) provides that the Requesting Party shall be 
notified without delay of the date of a provisional arrest or 
the reasons why the Requested Party cannot proceed with the 
request. Article 10(4) permits the release of the person 
provisionally arrested if the executive authority of the 
Requested Party does not receive the extradition request and 
supporting documents within 60 days of the date on which the 
person was provisionally arrested. This paragraph also 
specifies that receipt of the extradition request and 
supporting documents by the embassy of the Requested Party in 
the territory of the Requesting Party constitutes receipt by 
the executive authority of the Requested Party. Thus, such 
receipt by the embassy of the Requested Party constitutes 
timely receipt for purposes of complying with the time 
limitation for submission of the extradition request and 
supporting documents. Article 10(5) makes clear that the 
release of a person pursuant to Article 10(4) does not impede 
the person's re-arrest and extradition if the Requested Party 
receives the extradition request and supporting documents at a 
later date.

                   ARTICLE 11--DECISION AND SURRENDER

    Article 11 requires the Requested Party to promptly notify 
the Requesting Party of its decision on an extradition request. 
Under Article 11(2), if the Requested Party denies extradition, 
it must provide an explanation of the reasons for the denial. 
Article 11(3) provides for the person's surrender, while 
Article 11(4) addresses the person's discharge from custody if 
the person is not removed from the territory of the Requested 
Party within 60 days from the time that the person is made 
available for surrender or within the time prescribed by the 
law of that Party, whichever is longer. If the person is 
discharged from custody, the Requested Party retains the 
discretion to subsequently refuse extradition for the same 
offense.

    ARTICLE 12--DEFERRAL OF EXTRADITION PROCEEDINGS AND DEFERRED OR 
                          TEMPORARY SURRENDER

    Article 12 addresses deferred and temporary surrender of 
the person sought. Under Article 12(1), if the person sought is 
being proceeded against in the Requested Party, the Requested 
Party may defer the extradition proceedings until its own 
proceedings have been concluded. Under Article 12(2) when 
extradition proceedings have been concluded and extradition has 
been authorized, but the person sought is being criminally 
proceeded against or is serving a sentence in the Requested 
Party, the Requested Party may either defer the surrender of 
the person sought or temporarily surrender the person to the 
Requesting Party for the purpose of prosecution. Article 12(3) 
provides that the person may be detained until the surrender, 
while Article 12(4) requires the Requesting Party to keep the 
person temporarily surrendered in custody while in the 
territory of the Requesting Party and to return the person to 
the Requested Party at the conclusion of the proceedings. The 
person's return to the Requested Party shall not require any 
further extradition request or proceedings.

      ARTICLE 13--REQUESTS FOR EXTRADITION MADE BY SEVERAL STATES

    Pursuant to Article 13, if the Requested Party receives 
extradition requests for the same person from the Requesting 
Party and from any other States or State, either for the same 
offense or for different offenses, the executive authority of 
the Requested Party 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 Party in making its decision.

               ARTICLE 14--SEIZURE AND SURRENDER OF ITEMS

    Article 14 provides that, subject to certain conditions, 
the Requested Party may seize and surrender to the Requesting 
Party all items that are connected with the offense for which 
extradition is sought or that may be required as evidence in 
the Requesting Party.

                     ARTICLE 15--RULE OF SPECIALTY

    Article 15 sets forth the rule of specialty, which 
prohibits a person extradited under the Treaty from being 
detained, tried, or punished in the Requesting Party, except 
for any offense for which extradition was granted, or for a 
differently denominated offense carrying the same or lesser 
penalty that is based on the same acts or omissions as the 
offense for which extradition was granted, provided such 
offense is extraditable or is a lesser included offense. The 
rule of specialty does not bar detention, trial or punishment 
of the extradited person if the offense is committed after the 
extradition of the person, or if the competent authority of the 
Requested Party consents. Similarly, Article 15(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 competent authority 
of the Requested Party consents. This provision would preclude 
the Dominican Republic from transferring to a third State or an 
international tribunal a fugitive that the United States 
surrendered to the Dominican Republic, unless the United States 
consents. The competent authority for the United States for 
purposes of the article is the executive authority. Article 
15(4) provides that the rule of specialty provisions in this 
article do not apply if the person sought waives extradition 
under Article 16(a).

             ARTICLE 16--WAIVER AND SIMPLIFIED EXTRADITION

    Article 16 allows the Parties to expedite the transfer of 
the person whose extradition is sought to the Requesting Party. 
If the person waives extradition, a judicial officer may direct 
the person's transfer to the Requesting Party without further 
proceedings. If the person consents to extradition or to a 
simplified extradition proceeding, the Requested Party may 
surrender the person as expeditiously as possible.

                          ARTICLE 17--TRANSIT

    Article 17 governs the transportation through the territory 
of one Party of a person being extradited between the other 
Party and a third State. It also specifies the procedures for 
requesting such transit and makes clear that a person who is 
being transported pursuant to this article may be detained 
during the period of transit.

                ARTICLE 18--REPRESENTATION AND EXPENSES

    Article 18 requires the Requested Party to advise, assist, 
appear in court on behalf of, and represent the interests of 
the Requesting Party in any proceedings arising out of an 
extradition request. Additionally, the Requested Party 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 19--CONSULTATION

    Article 19 provides that the U.S. Department of Justice and 
the Dominican Office of the General Prosecutor may consult with 
each other directly in connection with individual cases and in 
furtherance of efficient implementation of the Treaty

                        ARTICLE 20--APPLICATION

    Article 20, like its counterpart in many other United 
States extradition treaties, establishes that the Treaty shall 
apply to requests submitted after the Treaty's entry into force 
even if the offenses for which extradition is requested were 
committed before the Treaty's entry into force, so long as the 
conduct on which the extradition request is based constituted 
an offense under the laws in both Parties at the time it 
occurred.

             ARTICLE 21--RATIFICATION AND ENTRY INTO FORCE

    Article 21 notes that the Treaty is subject to ratification 
and shall enter into force upon the exchange of the instruments 
of ratification. Article 21(3) provides that, upon entry into 
force, the 1909 Extradition Treaty will cease to have any 
effect between the Parties, except that the requests pending 
upon entry into force shall continue under the procedures of 
the 1909 Extradition Treaty supplemented by Article 6 of the 
Treaty.

                        ARTICLE 22--TERMINATION

    Under Article 22, 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 Dominican Republic, signed at Santo 
Domingo on January 12, 2015 (Treaty Doc. 114-10), 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]