[Senate Executive Report 115-4]
[From the U.S. Government Publishing Office]


115th Congress     }                               {      Exec. Rept.
                                 SENATE
 2d Session        }                               {           115-4

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



 
TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF SERBIA 
                             ON EXTRADITION

                                _______
                                

                  June 7, 2018.--Ordered to be printed

                                _______
                                

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

                                 REPORT

                    [To accompany Treaty Doc. 115-1]

    The Committee on Foreign Relations, to which was referred 
the Treaty Between the United States of America and the 
Republic of Serbia on Extradition, signed at Belgrade on August 
15, 2016 (Treaty Doc. 115-1), 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.................................2
 IV. Committee Action.................................................3
  V. Committee Comments...............................................3
 VI. Explanation of Extradition Treaty with Serbia....................3
VII. Text of Resolution of Advice and Consent to Ratification.........9

                               I. Purpose

    The purpose of the Extradition Treaty with the Republic of 
Serbia (hereinafter ``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 
Kingdom of Servia which was signed on October 25, 1901, and 
entered into force on June 12, 1902 (hereinafter the ``1901 
treaty''). The 1901 treaty applies to the Republic of Serbia as 
a successor state to the former Socialist Federal Republic of 
Yugoslavia.
    The treaty before the Senate is designed to replace, and 
thereby modernize, the century-old extradition treaty with the 
Kingdom of Servia. It was signed in August 2016 and submitted 
to the Senate on January 17, 2017. 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 1901 treaty. First, 
the Treaty contains a ``dual criminality'' provision, 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 1901 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 the extradition of 
nationals. Specifically, Article 3 states that ``[e]xtradition 
shall not be refused based on the nationality of the person 
sought.'' This contrasts with Article V of the 1901 treaty, 
which does not obligate a party to extradite its own citizens 
or subjects. Many countries have, historically, refused to 
extradite nationals.
    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 (a long-standing exception in U.S. 
extradition practice) bars extradition of an individual for 
offenses of a ``political'' nature. The Treaty with Serbia 
retains the political offense exception in Article 4, but 
provides that certain crimes shall not be considered political 
offenses, including murder, serious sexual assault, kidnapping, 
and offenses for which both parties have an obligation to 
extradite under a multilateral agreement.
    The Treaty contains a provision related to the death 
penalty. Under Article 7, when extradition is sought for an 
offense punishable by death in the Requesting State and is not 
punishable by death in the Requested State, the Requested State 
may refuse extradition unless the Requesting State provides an 
assurance that the person sought for extradition will not be 
executed. This provision is found in many U.S. extradition 
treaties, as many treaty partners do not impose the death 
penalty under their laws, and object to its application to 
fugitives whom they extradite to the United States.
    Finally, the terms of Article 16 Rule of Specialty clearly 
bar onward extradition unless the Requested State consents to 
the onward extradition or surrender.

                 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 hearing on December 
13, 2017, at which representatives of the Departments of State 
and Justice testified. The committee considered the Treaty on 
March 20, 2018, 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 
Republic of Serbia. 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 in place with 
the Republic of Serbia.

           VI. Explanation of Extradition Treaty with Serbia

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

 TECHNICAL ANALYSIS OF THE TREATY BETWEEN THE UNITED STATES OF AMERICA 
               AND THE REPUBLIC OF SERBIA ON EXTRADITION

    The Treaty Between the United States of America and the 
Republic of Serbia on Extradition (``Treaty'') replaces an 
outdated extradition treaty between the United States of 
America and the Kingdom of Servia signed in 1901.
    The following is an article-by-article description of the 
provisions of the Treaty:

Article 1--Obligation To Extradite

    Article 1 obligates each State to extradite to the other 
State persons sought by the Requesting State 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 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 of the 1901 
Treaty that the offense be among those listed in the Treaty. 
The dual criminality formulation also obviates the need to 
renegotiate or supplement the Treaty as additional offenses 
become punishable under the laws of both States. It ensures 
comprehensive coverage of criminal conduct for which 
extradition may be sought.
    Article 2(2) is designed to include within the realm of 
extraditable offenses an attempt or conspiracy to commit, or 
participation in the commission of, offenses described in 
Article 2(1). By using the broad term ``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 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. This provision 
also makes explicit that an offense is extraditable even where 
the evidence provided does not support the existence of certain 
facts that are merely necessary to establish U.S. federal 
jurisdiction, such as evidence of 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. In addition, an offense involving tax fraud or tax 
evasion, customs duties, or import/export controls shall be 
extraditable regardless of whether the Requested State provides 
for the same sort of taxes, duties, or controls.
    Article 2(4) addresses issues of territorial jurisdiction. 
It specifies that where the Requesting State seeks extradition 
for an offense that occurred outside its territory, the 
Requested State shall grant extradition if the laws of the 
Requested State would provide for punishment of the 
extraterritorial offense in similar circumstances. If the 
Requested State's laws would not provide for punishment of the 
extraterritorial offense in similar circumstances, the 
Requested State nonetheless retains discretion to grant 
extradition provided the other requirements of the Treaty are 
met.
    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 for an extraditable 
offense, the Requested State may only grant extradition if at 
least six months imprisonment remains to be served.

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

    Article 4 establishes an exception for political and 
military offenses. 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), however, describes five categories of 
offenses that shall not be considered political offenses. A 
near identical list of these limitations was included in the 
extradition treaties between the United States and Chile 
(signed 2013), the United States and the Dominican Republic 
(signed 2015), and the United States and Kosovo (signed 2016). 
The list of limitations in each of these most recent treaties 
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 when such device is capable of endangering life or 
causing substantial bodily harm or substantial property damage, 
Article 4(2)(d) now also establishes that political offenses 
cannot include offenses involving similarly serious biological, 
chemical or radiological agents. Further, Article 4(2)(e) makes 
clear that conspiracy or attempt to commit non-political 
offenses, or aiding or abetting another person who commits or 
attempts to commit such offenses, also shall not be considered 
political offenses. This slight narrowing of extraditable 
offenses to exclude political offenses aligns with a major 
priority of the United States to ensure that an overbroad 
definition of ``political offense'' does not impede the 
extradition of terrorists.
    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--Non Bis In Idem

    Article 5(1) prohibits extradition in instances where a 
person sought has been previously convicted, acquitted, or 
discharged from proceedings with final and binding effect by 
the Requested State for the offense for which extradition is 
requested. Under Article 5(2), however, a person shall not be 
considered to have been convicted, acquitted, or discharged in 
the Requested State when the authorities of the Requested 
State: (a) have decided not to prosecute the person sought for 
the acts for which extradition is requested, or (b) are still 
investigating or proceeding against the person sought for those 
acts.

Article 6--Lapse of Time

    Article 6 provides that only the laws of the Requesting 
State regarding lapse of time may be considered for purposes of 
deciding whether or not to grant extradition. In this regard, 
the Requested State is bound by the statement of the Requesting 
State that the statute of limitations has not expired.

Article 7--Death Penalty

    Article 7 addresses capital 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, the Requested State may refuse extradition 
unless the Requesting State provides assurances that: (a) the 
death penalty shall not be imposed on the person sought, or (b) 
the death penalty, if imposed, shall not be carried out against 
the person sought. If either condition is satisfied, the 
Requested State must comply with the extradition request, and 
the Requesting State must abide by its assurances.

Article 8--Extradition Procedures and Required Documents

    Article 8 specifies the procedures and documents required 
to support a request for extradition. Article 8(1) requires all 
extradition requests to be submitted through the diplomatic 
channel. Among several other requirements, Article 8(3)(c) 
establishes that extradition requests must be supported by 
information that would provide a sufficient basis to establish 
that it is probable that the person sought committed the 
offense(s) for which extradition is requested. Notably, this 
language is understood as equivalent to the probable cause 
standard applied in U.S. criminal law and applied by U.S. 
courts in determining whether to certify to the Secretary of 
State that a fugitive's extradition would be lawful under the 
applicable treaty and U.S. law. Article 8(6) permits the 
submission of additional information to enable the Requested 
State to decide on the extradition request. Article 8(7) deals 
with circumstances where the Requesting State is considering 
submitting particularly sensitive information to support its 
request for extradition. In such a case, if the Requesting 
State is not satisfied that the Requested State can adequately 
protect the sensitive information, the Requesting State must 
determine whether the sensitive information should be submitted 
nonetheless.

Article 9--Admissibility of Documents

    Article 9 sets out the procedures for the certification and 
admissibility of documents in extradition proceedings.

Article 10--Translation

    Article 10 requires all documents submitted by the 
Requesting State under the Treaty to be accompanied by an 
official translation into the language of the Requested State, 
unless otherwise agreed.

Article 11--Provisional Arrest

    Article 11 provides that, in cases of urgency, the 
Requesting State 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 11(2) specifies the information that must accompany a 
provisional arrest request. Article 11(3) provides that the 
Requesting State shall be notified without delay of the date of 
a provisional arrest or the reasons why the Requested State 
cannot proceed with the request. Article 11(4) permits the 
release of the person provisionally arrested if the executive 
authority of the Requested State does not receive the formal 
extradition request and supporting documents within 60 days of 
the date on which the person was provisionally arrested. For 
the purposes of applying the 60-day time limitation, receipt of 
the supporting documents by the embassy of the Requested State 
located in the Requesting State constitutes receipt by the 
executive authority of the Requested State. Article 11(5) makes 
clear that the release of a person pursuant to Article 11(4) 
does not prevent the person's re-arrest and extradition if the 
Requested State receives the formal extradition request and 
supporting documents at a later date.

Article 12--Decision and Surrender

    Article 12 requires the Requested State to promptly notify 
the Requesting State of its decision regarding an extradition 
request. If the Requested State denies extradition, Article 
12(2) requires the Requested State to explain the reasons for 
denial. If the Requested State agrees to grant extradition, 
Article 12(3) requires the Requested and Requesting States to 
coordinate the date and place for surrendering the person 
sought. Article 12(4) provides that if the person to be 
surrendered is not removed from the territory of the Requested 
State within the time prescribed by the Requested State's laws, 
the Requested State may discharge the person sought from 
custody and subsequently refuse extradition for the same 
offense.

Article 13--Deferral of Extradition Proceedings and Deferred or 
        Temporary Surrender

    Article 13 addresses deferred extradition proceedings and 
deferred or temporary surrender of the person sought. Under 
Article 13(1), if the person sought is being proceeded against 
in the Requested State, the Requested State may defer the 
extradition proceedings until its own proceedings have been 
concluded. Article 13(2) addresses circumstances where 
extradition proceedings have concluded and extradition has been 
authorized, but the person sought is being proceeded against or 
is serving a sentence in the Requested State. In such cases, 
the Requested State may either defer the surrender of the 
person sought or temporarily surrender the person to the 
Requesting State for the purpose of prosecution. Article 13(3) 
explains that if the Requested State elects to defer surrender, 
it may detain the person sought until surrender. Under Article 
13(4), however, if the Requested State elects to temporarily 
surrender the person to the Requesting State, the Requesting 
State must detain the temporarily surrendered person during 
proceedings and return the person when proceedings conclude. 
The person's return to the Requested State shall not require 
any further extradition request or proceedings.

Article 14--Conflicting Requests

    Pursuant to Article 14, if the Requested State receives 
extradition requests for the same person from the Requesting 
State and from any other State or States, either for the same 
offense or for different offenses, the executive authority of 
the Requested State shall determine to which State, if any, it 
will surrender that person. Article 14 requires the Requested 
State to consider several non-exclusive factors when 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(1) 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 
where the detention, trial, or punishment: (a) is for an 
offense for which extradition was granted, or for a differently 
denominated offense carrying the same or lesser penalty that is 
based on the same facts as the offense for which extradition 
was granted, provided such offense is extraditable or is a 
lesser included offense; (b) is for an offense committed after 
that person's extradition to the Requesting State; or (c) 
occurs with the consent of the competent authority of the 
Requested State. If the Requested State consents to the 
person's detention, trial or punishment for a different 
offense, the Requested State may require the Requesting State 
to submit the documentation required under Article 8.
    Similarly, 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 the Republic of Serbia from transferring to a third 
State or an international tribunal a fugitive that the United 
States surrendered to the Republic of Serbia, unless the United 
States consents. Article 16(3), however, permits the Requesting 
State to detain, try, punish, extradite, or surrender the same 
person if that person: (a) leaves and voluntarily returns to 
the Requesting State, or (b) chooses not to leave the 
Requesting State within 15 days of the day that person is free 
to leave.

Article 17--Waiver and Simplified Extradition

    Article 17 allows the Requesting State to expedite the 
transfer of the person whose extradition is sought to the 
Requesting State. If the person consents to be surrendered to 
the Requesting State in writing, the Requested State may 
surrender the person as expeditiously as possible. While 
Serbian law provides for this consent-based expedited 
surrender, it does not permit a fugitive to waive the 
extradition process entirely. U.S. law and practice permit both 
consent to extradition and waiver of the extradition process, 
in the latter of which surrender may occur without further 
judicial or executive branch proceedings and the rule of 
specialty would not apply.

Article 18--Transit

    Article 18 allows either State to authorize transportation 
through its territory of a person being extradited or otherwise 
transferred to the other State by a third State or from the 
other State to a third State for the purposes of prosecution, 
imposition of a sentence, or service of a sentence. 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. Under 
Article 18(2), authorization is not required when the other 
State only uses air transportation and no landing is scheduled 
on the State's territory. Should an unscheduled landing occur, 
however, the State may require submission of a formal transit 
request within 96 hours.

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 of documents and transportation of the person 
surrendered.

Article 20--Consultation

    Article 20 provides that the U.S. Department of Justice and 
the Ministry of Justice of the Republic of Serbia 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 applies to offenses 
committed both before and after the date it enters into force. 
However, the Executive Authority of the Requested State retains 
the discretion to deny a request for extradition of its 
national, Article 3 notwithstanding, if the offense(s) for 
which extradition is sought were committed prior to January 1, 
2005.

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 will supersede the 1901 Treaty with respect 
to all requests submitted on or after the date of ratification 
and to all pending requests.

Article 23--Termination

    Under Article 23, either State may terminate the Treaty by 
giving written notice to the other State through the diplomatic 
channel. The termination shall be effective six months after 
the date of such notice.

                 VII. Text of 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 United States of America and the Republic of 
Serbia on Extradition, signed at Belgrade on August 15, 2016 
(Treaty Doc. 115-1), subject to the declaration of section 2.

SEC. 2. DECLARATION.

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

                                  [all]