[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.
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