Estonia Extradition Treaty with the United States

Estonia International Extradition Treaty with the United States

February 8, 2006, Date-Signed

April 7, 2009, Date-In-Force

Message from the President of the United States

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF THE REPUBLIC OF ESTONIA, SIGNED ON FEBRUARY 8, 2006, AT
TALLINN

September 29, 2006.–Treaty was read the first time, and together with
the accompanying papers, referred to the Committee on Foreign Relations
and ordered to be printed for the use of the Senate

LETTER OF TRANSMITTAL

The White House, September 29, 2006.
To the Senate of the United States:
With a view to receiving the advice and consent of the
Senate to ratification, I transmit herewith the Extradition
Treaty between the United States of America and the Government
of the Republic of Estonia, signed on February 8, 2006, at
Tallinn. I also transmit, for the information of the Senate,
the report of the Department of State with respect to the
treaty.

The new extradition treaty with Estonia would replace the
outdated extradition treaty between the United States and
Estonia, signed on November 8, 1923, at Tallinn, and the
Supplementary Extradition Treaty, signed on October 10, 1934,
at Washington. The treaty also fulfills the requirement for a
bilateral instrument between the United States and each
European Union (EU) Member State in order to implement the
Extradition Agreement between the United States and the EU. Two
other comprehensive new extradition treaties with EU Member
States–Latvia and Malta–likewise also serve as the requisite
bilateral instruments pursuant to the U.S.-EU Agreement, and
therefore also are being submitted separately and individually.
The treaty follows generally the form and content of other
extradition treaties recently concluded by the United States.
It would replace an outmoded list of extraditable offenses with
a modern “dual criminality” approach, which would enable
extradition for such offenses as money laundering and other
newer offenses not appearing on the list. The treaty also
contains a modernized “political offense” clause. It further
provides that extradition shall not be refused based on the
nationality of the person sought; in the past, Estonia has
declined to extradite its nationals to the United States.
Finally, the new treaty incorporates a series of procedural
improvements to streamline and speed the extradition process.
I recommend that the Senate give early and favorable
consideration to the treaty.
George W. Bush.
LETTER OF SUBMITTAL

Department of State,
Washington, August 3, 2006.
The President,
The White House.
The President: I have the honor to submit to you the
Extradition Treaty between the United States and Estonia,
signed on February 8, 2006. Upon its entry into force, the
Treaty would replace the outdated Extradition Treaty between
the United States and Estonia, signed on November 8, 1923, and
the Supplementary Extradition Treaty, signed on October 10,
1934. It also fulfills the requirement for a bilateral
instrument between the United States and each member state of
the European Union implementing the Extradition Agreement
between the United States and the European Union signed on June
25, 2003, which is being separately submitted. A detailed,
article-by-article analysis is enclosed with this report. I
recommend that the Treaty be transmitted to the Senate for its
advice and consent to ratification. The Treaty is self-
executing and will not require implementing legislation.
Respectfully submitted.
Condoleezza Rice.
Enclosures: As stated.

U.S.-Estonia Extradition Treaty

OVERVIEW

The U.S.-Estonia Extradition Treaty replaces an outdated
1923 Treaty and 1934 Supplementary Treaty. It also serves to
implement between the United States and Estonia the provisions
of the U.S.-EU Extradition Agreement.
The following is an Article-by-Article description of the
provisions of the Treaty.

Article 1 obligates each Party to extradite to the other,
pursuant to the provisions of the Treaty, persons whom the
authorities in the Requesting State have charged with or
convicted of an extraditable offense.

Article 2 concerns extraditable offenses and is taken from
Article 4 of the U.S.-EU Extradition Agreement. Article 2(1)
defines an offense as extraditable if the conduct on which the
offense is based is punishable under the laws in both States by
deprivation of liberty for a period of more than one year or by
a more severe penalty. Use of a pure “dual criminality”
clause, rather than categories of offenses listed in the 1923
Treaty, obviates the need to renegotiate or supplement the
Treaty as additional offenses become punishable under the laws
in both States.

Article 2(2) further defines an extraditable offense as an
attempt or a conspiracy to commit, or participation in the
commission of an extraditable offense. The Parties intended to
include the offenses of aiding, abetting, counseling or
procuring the commission of an offense, as well as being an
accessory to an offense, under the broad description of
participation.

Additional flexibility is provided by ArticIe 2(3), which
provides that an offense shall be an extraditable offense: a)
whether or not the laws in the Requesting and Requested States
place the offense within the same category of offenses or
describe the offense by the same terminology; b) whether or not
the offense is one for which United States federal law requires
the showing of such matters as interstate transportation, or
use of the mails or of other facilities affecting interstate or
foreign commerce, such matters being jurisdictional only; or c)
in criminal cases relating to taxes, customs duties, currency
control or commodities.

With regard to offenses committed outside the territory of
the Requesting State, Article 2(4) provides that extradition
shall be granted for an extraditable offense regardless of
where the act or acts constituting the offense were committed.

Article 2(5) provides that if extradition is granted for an
extraditable offense, it shall also be granted for any other
offense specified in the request if the latter offense is
punishable by one year’s deprivation of liberty or less,
provided that all other requirements for extradition are met.

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

Article 4 sets forth bases for the denial of extradition.
As is customary in extradition treaties, paragraph I provides
that extradition shall not be granted if the offense for which
extradition is requested constitutes a political offense.

Article 4(2) specifies six categories of offenses that
shall not be considered to be political offenses: (a) a murder
or other violent crime against a Head of State of one of the
Parties, or of a member of the Head of State’s family; (b) an
offense for which both Parties have the obligation pursuant to
a multilateral international agreement to extradite the person
sought or to submit the case to their competent authorities for
decision as to prosecution; (c) murder, manslaughter, malicious
wounding, or inflicting grievous bodily harm; (d) an offense
involving kidnapping, abduction, or any form of unlawful
detention, including the taking of a hostage; (e) placing or
using an explosive, incendiary, or destructive device capable
of endangering life, of causing substantial bodily harm, or of
causing grievous property damage; and (f) a conspiracy or
attempt to commit any of the foregoing offenses, or
participation in the commission of such offenses.

Article 4(3) provides that extradition shall not be granted
if the executive authority of the Requested State determines
that the request was politically motivated.

Article 4(4) provides that offenses under military law that
are not offenses under ordinary criminal law (e.g., desertion)
are excluded from the scope of the Treaty.

Article 5(1) provides that extradition shall not be granted
when the person sought has been convicted or acquitted in the
Requested State for the offense for which extradition is
requested.

Article 5(2) provides that extradition shall not be
precluded by the fact that the competent 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 which have
been instituted against the person sought for those acts; or
(c) have decided to investigate the person sought for the same
acts.

Article 6 provides that extradition shall not be granted
when the prosecution or the enforcement of the penalty for the
offense for which extradition has been sought has become barred
by lapse of time according to the law of the Requesting State.

Article 7 concerns capital punishment, and is taken from
Article 13 of the U.S.-EU Extradition Agreement. When an
offense for which exadition is sought is punishable by death
under the laws in the Requesting State but not under the laws
in the Requested State, the Requested State may grant
extradition on the condition that the death penalty shall not
be imposed on the person sought, or if for procedural reasons
such condition cannot be complied with by the Requesting State,
on condition that the death penalty if imposed shall not be
carried out. If the Requesting State accepts extradition
subject to conditions pursuant to this Article, it shall comply
with the conditions. If the Requesting State does not accept
the conditions, the request for extradition may be denied.

Article 8 establishes the procedures and describes the
documents that are required to support a request for
extradition. Paragraph 1, which is taken from Article 5(1) of
the U.S.-EU Extradition Agreement, provides that all requests
for extradition must be submitted through the diplomatic
channel, which shall include transmission under Article 11(4).
Among other requirements, Article 8(3) provides that a request
for the extradition of a person sought for prosecution must be
supported by: (a) a copy of the warrant or order of arrest
issued by a judge, court, or other competent authority; (b) a
copy of the charging document; and (c) such information as
would provide a reasonable basis to believe that the person
sought committed the offense for which extradition is sought.

Pursuant to Article 8(4), a request for extradition of a
person who has been convicted in absentia must be supported by
the documents required in a request for a person who is sought
for prosecution.

Article 8(5), which is taken from Article 8 of the U.S.-EU
Extradition Agreement, authorizes the furnishing of additional
information, if the Requested State deems it necessary to
support an extradition request, and specifies that such
information may be requested and supplied directly between the
United States Department of Justice and the Ministry of Justice
of the Republic of Estonia.

Article 8(6), which is taken from
Article 14 of the U.S.-EU Extradition Agreement, addresses the
submission of sensitive information in extradition requests.

Article 9, which is taken from Article 5 of the U.S.-EU
Extradition Agreement, concerns admissibility of documents. It
provides that documents bearing the certificate or seal of
either the Ministry of Justice or foreign affairs Ministry or
Department of the Requesting State shall be admissible in
extradition proceedings in the Requested State without further
certification.

Article 10 provides that all documents submitted under the
Treaty by the Requesting State shall be translated into the
language of the Requested State.

Article 11 sets forth procedures and describes the
information that is required for the provisional arrest and
detention of the person sought, in an urgent situation, pending
presentation of the formal request for extradition. Paragraph
1, which sets forth procedures for transmission of a request
for provisional arrest, is taken from Article 7 of the U.S.-EU
Extradition Agreement.

Article 11(4) provides that if the Requested State’s executive authority has not received the
request for extradition and supporting documents within sixty
days from the date of provisional arrest, the person may be
discharged from custody. Paragraph 4 also provides an
alternative channel for receipt of extradition requests with
respect to persons who have been provisionally arrested, taken
from Article 6 of the U.S.-EU Extradition Agreement. Article

11(5) explicitly provides that the discharge of a person from
custody pursuant to Article 11(4) does not prejudice the
person’s subsequent rearrest and extradition if the extradition
request and supporting documents are delivered at a later date.

Article 12 specifies the procedures governing a decision on
the extradition request and the surrender of the person sought.
It requires the Requested State to promptly notify the
Requesting State of its decision regarding a request. If the
request is denied in whole or in part, the Requested State must
provide an explanation for the denial and, upon request, copies
of pertinent judicial decisions. If extradition is granted, the
States shall agree on the time and place for the surrender of
the person sought. If the person sought is not removed from the
territory of the Requested State within the time period
prescribed by the law of that State, the person may be
discharged from custody, and the Requested State, in its
discretion, may subsequently refuse extradition for the same
offense(s).

Article 13 addresses temporary and deferred surrender.
Paragraph 1, on temporary surrender, is taken from Article 9 of
the U.S.-EU Extradition Agreement. It provides that if a person
whose extradition is sought is being proceeded against or is
serving a sentence in the Requested State, the Requested State
may temporarily surrender the person to the Requesting State
for the purpose of prosecution. The Requesting State shall keep
the person so surrendered in custody and shall return that
person to the Requested State after the conclusion of the
proceedings against that person, in accordance with conditions
to be determined by mutual agreement of the States.
Paragraph 2, on deferred surrender, provides that the
Requested State may postpone the extradition proceedings
against a person who is being prosecuted or who is serving a
sentence in that state.

Article 14, which is taken from Article 10 of the U.S.-EU
Extradition Agreement, provides a non-exclusive list of factors
to be considered by the executive authority of the Requested
State in determining to which State to surrender a person whose
extradition is sought by more than one State. It includes, in
paragraph 2, language establishing the applicability of this
analysis to competing requests from the United States and from
a member state of the European Union made to Estonia under the
European Arrest Warrant.

Article 15 provides that the Requested State may, to the
extent permitted under its law, seize and surrender to the
Requesting State all items, including articles, documents, and
evidence, that are connected with the offense in respect of
which extradition is granted. Such items may be surrendered
even if the extradition cannot be effected due to the death,
disappearance, or escape of the person sought, and prior to the
extradition, if requested pursuant to the mutual legal
assistance treaty between the parties. The Requested State may
condition the surrender of the items upon satisfactory
assurances from the Requesting State that the property will be
returned to the Requested State as soon as practicable. The
Requested State may also defer the surrender of such items if
they are needed as evidence in the Requested State. The rights
of third parties in such items are to be respected in
accordance with the laws of the Requested State.

Article 16 sets forth the rule of speciality under
international law. Paragraph 1 provides, subject to specific
exceptions set forth in paragraph 3, that a person extradited
under the Treaty may not be detained, tried, or punished in the
Requesting State except for: (a) any offense for which
extradition was granted, or a differently denominated offense
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) any offense committed after the
extradition of the person; or (c) any offense for which the
executive authority of the Requested State waives the rule of
speciality and thereby consents to the person’s detention,
trial, or punishment.

Article 16(2) provides that a person extradited under the
Treaty may not be the subject of onward extradition to a third
State or an international tribunal for any offense committed
prior to the extradition to the Requesting State unless the
Requested State consents.

Under Article 16(3), these restrictions shall not prevent
the detention, trial, or punishment of an extradited person, or
the extradition of a person to a third State, if the extradited
person leaves the territory of the Requesting State after
extradition and voluntarily returns to it or fails to leave the
territory of the Requesting State within ten days of being free
to do so.

Article 17 permits surrender as expeditiously as possible
if the person sought consents to be surrendered to the
Requesting State.

Article 18, which is taken from Article 12 of the U.S.-EU
Extradition Agreement, governs the transit through the
territory of one State of a person surrendered to the other
State by a third country.

Article 19 contains provisions on representation and
expenses. Specifically, the Requested State is required to
advise, assist, appear in court on behalf of, and represent the
interests of the Requesting State in any proceedings arising
out of a request for extradition. The Requested State also
bears all expenses incurred in that State in connection with
the extradition proceedings, except that the Requesting State
pays expenses related to translation of extradition documents
and the transportation of the person surrendered.

Article 19(3) specifies that neither State shall make any pecuniary claim
against the other arising out of the arrest, detention,
examination, or surrender of persons under the Treaty.

Article 20 provides that the United States Department of
Justice and the Ministry of Justice of the Republic of Estonia
may consult in connection with the processing of individual
cases and in furtherance of efficient implementation of the
Treaty.

Article 21 makes the Treaty applicable to offenses
committed before as well as on or after the date it enters into
force.

Article 22 contains final clauses dealing with the Treaty’s
entry into force and termination. It provides that the Treaty
is subject to ratification and that the Treaty shall enter into
force upon the exchange of the instruments of ratification.

Article 22(3) provides that, upon entry into force of the
Treaty, the Treaty of Extradition between the United States of
America and the Republic of Estonia, signed at Tallinn on
November 8, 1923, and the Supplementary Extradition Treaty
signed at Washington on October 10, 1934, shall cease to have
any effect. Either State may terminate the Treaty with six
months written notice to the other State through the diplomatic
channel.

The Department of Justice joins the Department of State in
favoring approval of this Treaty by the Senate at the earliest
possible date.

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Douglas McNabb and other members of the firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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