Brazil Extradition Treaty with the United States

April 8, 2011

Brazil International Extradition Treaty with the United States

January 13, 1961, Date-Signed

December 17, 1964, Date-In-Force

Treaty and additional protocol signed at Rio de Janeiro on January 13, 1961, and June 18, 1962, respectively. Ratification advised by the Senate of the United States of America on May 16, 1961, and October 22, 1963, respectively. Ratified by the President of the United States of America on May 29, 1961, and October 29, 1963, respectively. Ratified by Brazil on August 25, 1964. Ratifications exchanged at Washington on November 17, 1964. It was Proclaimed by the President of the United States of America on November 20, 1964. It Entered into force on December 17, 1964.

TREATY OF EXTRADITION BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED STATES OF BRAZIL

TRATADO DE EXTRADICAO ENTRE OS ESTADOS UNIDOS DA AMERICA E OS ESTADOS UNIDOS DO BRASIL

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

WHEREAS a treaty of extradition between the United States of America and the United States of Brazil was signed at Rio de Janeiro on January 13, 1961 and an additional protocol thereto was signed at Rio de Janeiro on June 18, 1962, the originals of which treaty and additional protocol, being in the English and Portuguese languages, are word for word as follows:

The United States of America and the United States of Brazil, desiring to make more effective the cooperation of their respective countries in the repression of crime, have resolved to conclude a treaty of extradition and for this purpose have appointed the following Plenipotentiaries:

The President of the United States of America: His Excellency John Moors Cabot, Ambassador of the United States of America to Brazil, and

The President of the United States of Brazil: His Excellency Horacio Lafer, Minister of State for External Relations,

Who, having communicated to each other their respective full powers, found to be in good and due form, agree as follows:

ARTICLE I

Each Contracting State agrees, under the conditions established by the present Treaty and each in accordance with the legal formalities in force in its own country, to deliver up, reciprocally, persons found in its territory who have been charged with or convicted of any of the crimes or offenses specified in Article II of the present Treaty and committed within the territorial jurisdiction of the other, or outside thereof under the conditions specified in Article IV of the present Treaty; provided that such surrender shall take place only upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his commitment for trial if the crime or offense had been there committed.

ARTICLE II

Persons shall be delivered up according to the provisions of the present Treaty for prosecution when they have been charged with, or to undergo sentence when they have been convicted of, any of the following crimes or offenses:

1. Murder (including crimes designated as parricide, poisoning, and infanticide, when provided for as separate crimes); manslaughter when voluntary.

2. Rape; abortion; carnal knowledge of (or violation of) a girl under the age specified by law in such cases in both the requesting and requested States.

3. Malicious wounding; willful assault resulting in grievous bodily harm.

4. Abduction, detention, deprivation of liberty, or enslavement of women or girls for immoral purposes.

5. Kidnapping or abduction of minors or adults for the purpose of extorting money from them or their families or any other person or persons, or for any other unlawful end.

6. Bigamy.

7. Arson.

8. The malicious and unlawful damaging of railways, trains, vessels, aircraft, bridges, vehicles, and other means of travel or of public or private buildings, or other structures, when the act committed shall endanger human life.

9. Piracy, by the law of nations; mutiny on board a vessel or an aircraft for the purpose of rebelling against the authority of the Captain or Commander of such vessel or aircraft; or by fraud or violence taking possession of such vessel or aircraft.

10. Burglary, defined to be the breaking into or entering either in day or night time, a house, office, or other building of a government, corporation, or private person, with intent to commit a felony therein; housebreaking.

11. Robbery.

12. Forgery or the utterance of forged papers.

13. The forgery, falsification, theft or destruction of the official acts or public records of the government or public authority, including Courts of Justice, or the uttering or fraudulent use of the same.

14. The fabrication or the utterance, circulation or fraudulent use of any of the following objects: counterfeit money, whether coin or paper; counterfeit titles or coupons of public debt, created by national, state, provincial, territorial, local, or municipal governments; counterfeit bank notes or other instruments of public credit; and counterfeit seals, stamps, dies, and marks of State or public administration.

15. The introduction of instruments for the fabrication of counterfeit coins or bank notes or other paper currency as money.

16. Embezzlement by any person or persons hired, salaried or employed, to the detriment of their employers or principals.

17. Larceny.

18. Obtaining money, valuable securities or other property by false pretenses, or by threats of injury.

19. Receiving any money, valuable securities or other property knowing the same to have been unlawfully obtained.

20. Fraud or breach of trust by a bailee, banker, factor, trustee, executor, administrator, guardian, director or officer of any company or corporation or by anyone in any fiduciary capacity.

21. Willful non-support or willful abandonment of a minor or other dependent person when death or serious bodily injury results therefrom.

22. Perjury (including willfully false expert testimony); subornation of perjury.

23. Soliciting, receiving, or offering bribes.

24. The following offenses when committed by public officials: extortion; embezzlement.

25. Crimes or offenses against the bankruptcy laws.

26. Crimes or offenses against the laws of both countries for the suppression of slavery and slave trading.

27. Crimes or offenses against the laws relating to the traffic in, use of, or production or manufacture of, narcotic drugs or cannabis.

28. Crimes or offenses against the laws relating to the illicit manufacture of or traffic in substances injurious to health, or poisonous chemicals.

29. Smuggling, defined to be the act of willfully and knowingly violating the customs laws with intent to defraud the revenue by international traffic in merchandise subject to duty.

30. Aiding the escape of a prisoner by force of arms.

31. Use of explosives so as to endanger human life or property.

32. Procuration, defined as the procuring or transporting of a woman or girl under age, even with her consent, for immoral purposes, or of a woman or girl over age, by fraud, threats, or compulsion, for such purposes with a view in either case to gratifying the passions of another person; profiting from the prostitution of another.

33. The attempt to commit any of the above crimes or offenses, when such attempt is made a separate offense by the laws of the Contracting States.

34. Participation in any of the above crimes or offenses.

ARTICLE III

Except as otherwise provided in the present Treaty, the requested State shall extradite a person accused or convicted of any crime or offense enumerated in Article II only when both of the following conditions exist:

1. The law of the requesting State, in force when the crime or offense was committed, provides a possible penalty of deprivation of liberty for a period of more than one year; and

2. The law in force in the requested State generally provides a possible penalty of deprivation of liberty for a period of more than one year which would be applicable if the crime or offense were committed in the territory of the requested State.

ARTICLE IV

When the crime or offense has been committed outside the territorial jurisdiction of the requesting State, the request for extradition need not be honored unless the laws of the requesting State and those of the requested State authorize punishment of such crime or offense in this circumstance.

The words “territorial jurisdiction” as used in this Article and in Article I of the present Treaty mean: territory, including territorial waters, and the airspace thereover, belonging to or under the control of one of the Contracting States; and vessels and aircraft belonging to one of the Contracting States or to a citizen or corporation thereof when such vessel is on the high seas or such aircraft is over the high seas.

ARTICLE V

Extradition shall not be granted in any of the following circumstances:

1. When the requested State is competent, according to its laws, to prosecute the person whose surrender is sought for the crime or offense for which that person’s extradition is requested and the requested State intends to exercise its jurisdiction.

2. When the person whose surrender is sought has already been or is at the time of the request being prosecuted in the requested State for the crime or offense for which his extradition is requested.

3. When the legal proceedings or the enforcement of the penalty for the crime or offense committed has become barred by limitation according to the laws of either the requesting State or the requested State.

4. When the person sought would have to appear, in the requesting State, before an extraordinary tribunal or court.

5. When the crime or offense for which the person’s extradition is requested is purely military.

6. When the crime or offense for which the person’s extradition is requested is of a political character. Nevertheless

a. The allegation by the person sought of political purpose or motive for the request for his extradition will not preclude that person’s surrender if the crime or offense for which his extradition is requested is primarily an infraction of the ordinary penal law. In such case the delivery of the person being extradited will be dependent on an undertaking on the part of the requesting State that the political purpose or motive will not contribute toward making the penalty more severe.

b. Criminal acts which constitute clear manifestations of anarchism or envisage the overthrow of the bases of all political organizations will not be classed as political crimes or offenses.

c. The determination of the character of the crime or offense will fall exclusively to the authorities of the requested State.

ARTICLE VI

When the commission of the crime or offense for which the extradition of the person is sought is punishable by death under the laws of the requesting State and the laws of the requested State do not permit this punishment, the requested State shall not be obligated to grant the extradition unless the requesting State provides assurances satisfactory to the requested State that the death penalty will not be imposed on such person.

ARTICLE VII

There is no obligation upon the requested State to grant the extradition of a person who is a national of the requested State, but the executive authority of the requested State shall, subject to the appropriate laws of that State, have the power to surrender a national of that State if, in its discretion, it be deemed proper to do so.

ARTICLE VIII

The Contracting States may request, one from the other, through the channel of their respective diplomatic or consular agents, the provisional arrest of a fugitive as well as the seizure of articles relating to the crime or offense.

The request for provisional arrest shall be granted provided that the crime or offense for which the extradition of the fugitive is sought is one for which extradition shall be granted under the present Treaty and provided that the request contains:

1. A statement of the crime or offense of which the fugitive is accused or convicted;

2. A description of the person sought for the purpose of identification;

3. A statement of the probable whereabouts of the fugitive, if known; and

4. A declaration that there exist and will be forthcoming the relevant documents required by Article IX of the present Treaty.

If, within a maximum period of 60 days from the date of the provisional arrest of the fugitive in accordance with this Article, the requesting State does not present the formal request for his extradition, duly supported, the person detained will be set at liberty and a new request for his extradition will be accepted only when accompanied by the relevant documents required by Article IX of the present Treaty.

ARTICLE IX

The request for extradition shall be made through diplomatic channels or, exceptionally, in the absence of diplomatic agents, it may be made by a consular officer, and shall be supported by the following documents:

1. In the case of a person who has been convicted of the crime or offense for which his extradition is sought:

a duly certified or authenticated copy of the final sentence of the competent court.

2. In the case of a person who is merely charged with the crime or offense for which his extradition is sought:

a duly certified or authenticated copy of the warrant of arrest or other order of detention issued by the competent authorities of the requesting State, together with the depositions upon which such warrant or order may have been issued and such other evidence or proof as may be deemed competent in the case.

The documents specified in this Article must contain a precise statement of the criminal act of which the person sought is charged or convicted, the place and date of the commission of the criminal act, and they must be accompanied by an authenticated copy of the texts of the applicable laws of the requesting State including the laws relating to the limitation of the legal proceedings or the enforcement of the penalty for the crime or offense for which the extradition of the person is sought, and data or records which will prove the identity of the person sought.

The documents in support of the request for extradition shall be accompanied by a duly certified translation thereof into the language of the requested State.

ARTICLE X

When the extradition of a person has been requested by more than one State, action thereon will be taken as follows:

1. If the requests deal with the same criminal act, preference will be given to the request of the State in whose territory the act was performed.

2. If the requests deal with different criminal acts, preference will be given to the request of the State in whose territory the most serious crime or offense, in the opinion of the requested State, has been committed.

3. If the requests deal with different criminal acts, but which the requested State regards as of equal gravity, the preference will be determined by the priority of the requests.

ARTICLE XI

The determination that extradition based upon the request therefor should or should not be granted shall be made in accordance with the domestic law of the requested State, and the person whose extradition is desired shall have the right to use such remedies and recourses as are authorized by such law.

ARTICLE XII

If at the time the appropriate authorities of the requested State shall consider the documents submitted by the requesting State, as required in Article IX of the present Treaty, in support of its request for the extradition of the person sought, it shall appear that such documents do not constitute evidence sufficient to warrant extradition under the provisions of the present Treaty of the person sought, such person shall be set at liberty unless the requested State or the proper tribunal thereof shall, in conformity with its own laws, order an extension of time for the submission by the requesting State of additional evidence.

ARTICLE XIII

Extradition having been granted, the surrendering State shall communicate promptly to the requesting State that the person to be extradited is held at its disposition.

If, within 60 days counting from such communication — except when rendered impossible by force majeure or by some act of the person being extradited or the surrender of the person is deferred pursuant to Articles XIV or XV of the present Treaty — such person has not been delivered up and conveyed out of the jurisdiction of the requested State, the person shall be set at liberty.

ARTICLE XIV

When the person whose extradition is requested is being prosecuted or is serving a sentence in the requested State, the surrender of that person under the provisions of the present Treaty shall be deferred until the person is entitled to be set at liberty, on account of the crime or offense for which he is being prosecuted or is serving a sentence, for any of the following reasons: dismissal of the prosecution, acquittal, expiration of the term of the sentence or the term to which such sentence may have been commuted, pardon, parole, or amnesty.

ARTICLE XV

When, in the opinion of competent medical authority, duly sworn to, the person whose extradition is requested cannot be transported from the requested State to the requesting State without serious danger to his life due to his grave illness, the surrender of the person under the provisions of the present Treaty shall be deferred until such time as the danger, in the opinion of the competent medical authority, has been sufficiently mitigated.

ARTICLE XVI

The requesting State may send to the requested State one or more duly authorized agents, either to aid in the identification of the person sought or to receive his surrender and to convey him out of the territory of the requested State.

Such agents, when in the territory of the requested State, shall be subject to the applicable laws of the requested State, but the expenses which they incur shall be for the account of the State which has sent them.

ARTICLE XVII

Expenses related to the transportation of the person extradited shall be paid by the requesting State. The appropriate legal officers of the country in which the extradition proceedings take [*16] place shall, by all legal means within their power, assist the officers of the requesting State before the respective judges and magistrates. No pecuniary claim, arising out of the arrest, detention, examination and surrender of fugitives under the terms of the present Treaty, shall be made by the requested State against the requesting State other than as specified in the second paragraph of this Article and other than for the lodging, maintenance, and board of the person being extradited prior to his surrender.

The legal officers, other officers of the requested State, and court stenographers in the requested State who shall, in the usual course of their duty, give assistance and who receive no salary or compensation other than specific fees for services performed, shall be entitled to receive from the requesting State the usual payment for such acts or services performed by them in the same manner and to the same amount as though such acts or services had been performed in ordinary criminal proceedings under the laws of the country of which they are officers.

ARTICLE XVIII

A person who, after surrender by either of the Contracting States to the other under the terms of the present Treaty, succeeds in escaping from the requesting State and takes refuge in the territory of the State which has surrendered him, or passes through it in transit, will be detained, upon simple diplomatic request, and surrendered anew, without other formalities, to the State to which his extradition was granted.

ARTICLE XIX

Transit through the territory of one of the Contracting States of a person in the custody of an agent of the other Contracting State, and surrendered to the latter by a third State, and who is not of the nationality of the country of transit, shall, subject to the provisions of the second paragraph of this Article, be permitted, independently of any judicial formalities, when requested through diplomatic channels and accompanied by the presentation in original or in authenticated copy of the document by which the State of refuge has granted the extradition. In the United States of America, the authority of the Secretary of State of the United States of America shall be first obtained.

The permission provided for in this Article may nevertheless be refused if the criminal act which has given rise to the extradition does not constitute a crime or offense enumerated in Article II of the present Treaty, or when grave reasons of public order are opposed to the transit.

ARTICLE XX

Subject to the rights of third parties, which shall be duly respected:

1. All articles, valuables, or documents which relate to the crime or offense and, at the time of arrest, have been found in the possession of the person sought or otherwise found in the requested State shall be surrendered, with him, to the requesting State.

2. The articles and valuables which may be found in the possession of third parties and which likewise are related to the crime or offense shall also be seized, but may be surrendered only after the rights with regard thereto asserted by such third parties have been determined.

ARTICLE XXI

A person extradited by virtue of the present Treaty may not be tried or punished by the requesting State for any crime or offense committed prior to the request for his extradition, other than that which gave rise to the request, nor may he be re-extradited by the requesting State to a third country which claims him, unless the surrendering State so agrees or unless the person extradited, having been set at liberty within the requesting State, remains voluntarily in the requesting State for more than 30 days from the date on which he was released. Upon such release, he shall be informed of the consequences to which his stay in the territory of the requesting State would subject him.

ARTICLE XXII

The present Treaty shall be ratified and the ratifications thereof shall be exchanged at Washington, as soon as possible.

The present Treaty shall enter into force one month after the date of exchange of ratifications. It may be terminated at any time by either Contracting State giving notice of termination to the other Contracting State, and the termination shall be effective six months after the date of such notice.

IN WITNESS WHEREOF the respective Plenipotentiaries have signed the present Treaty and have affixed hereunto their seals.

DONE in duplicate, in the English and Portuguese languages, both equally authentic, at Rio de Janeiro, this thirteenth day of January, one thousand nine hundred sixty-one.

Os Estados Unidos da America e os Estados Unidos do Brasil, desejando tornar mais eficaz a cooperacao dos respectivos paises na repressao ao crime, resolveram celebrar um Tratado de Extradicao e, para esse fim, nomearam os seguintes Plenipotenciarios:

O Presidente dos Estados Unidos da America, Sua Excelencia o Senhor John Moors Cabot, Embaixador dos Estados Unidos da America,

O Presidente dos Estados Unidos do Brasil, Sua Excelencia o Senhor Horacio Lafer, Ministro de Estado das Relacoes Exteriores,

Os quais, depois de haverem exibido os seus Plenos Poderes, achados em boa e devida forma, convem no seguinte:

ARTIGO 1.

Cada Estado Contratante concorda, nas condicoes estabelecidas pelo presente Tratado e de acordo com as formalidades legais nele vigentes, com a entrega reciproca dos individuos que, encontrando-se em seu territorio, tenham sido processados ou condenados, por qualquer dos crimes ou delitos especificados no artigo 2. do presente Tratado, cometidos na jurisdicao territorial do outro, ou, fora dela, nas condicoes especificadas no artigo 4. do presente Tratado; contanto que tal entrega so se efetue a vista de prova de culpa que, de acordo com as leis do lugar em que o individuo acusado se encontrar e se o crime ou delito ai se tivesse cometido, justificaria a submissao do mesmo a julgamento.

ARTIGO 2.

Serao entregues, de acordo com as disposicoes do presente Tratado, para serem processados quando tiverem sido inculpados, ou para cumprirem sentenca quando tiverem sido condenados, os individuos que hajam cometido qualquer dos seguintes crimes ou delitos:

1. Homicidio doloso, (inclusive os crimes designados como parricidio, envenenamento e infanticidio, quando previstos como figuras delituosas autonomas);

2. Estupro, aborto, conjuncao carnal com (ou violacao de) mulher considerada de menor idade, para tais efeitos, pelas leis tanto do Estado requerente quanto do requerido;

3. Lesoes corporais dolosas; agressao de que resultam lesoes corporais graves;

4. Rapto, sequestracao, privacao da liberdade, ou escravizacao de mulheres ou mocas para fins imorais;

5. Rapto de menores ou de adultos para extorquir dinheiro deles, ou de suas familias, ou de qualquer outra pessoa ou pessoas, ou para algum outro fim ilegal;

6. Bigamia;

7. Incendio;

8. Dano, doloso e ilegal, em estradas de ferro, trens, embarcacoes, aeronaves, pontes, veiculos, e outros meios de transporte ou em edificios publicos ou privados, ou em outras estruturas, quando o ato cometido puser em perigo a vida humana;

9. Pirataria, segundo o direito internacional; motim a bordo de embarcacao ou aeronave com o proposito de rebelar-se contra a autoridade do Capitao ou Comandante de tal embarcacao ou aeronave; ou, por fraude ou violencia, apossar-se da mesma embarcacao ou aeronave;

10. Entrada em casa alheia, com violencia;

11. Roubo;

12. Falsificacao ou emissao de papeis e titulos falsificados;

13. Falsificacao por fabricacao ou alteracao, furto ou destruicao de atos oficiais, livros de registro ou documentos publicos do Governo ou da autoridade publica, inclusive orgaos judiciarios, ou a emissao ou o uso fraudulento dos mesmos;

14. Falsificacao ou emissao, circulacao ou uso fraudulento de qualquer dos seguintes objetos: moeda metalica ou papel-moeda; falsos titulos ou cupoes da divida publica nacional, estadual, territorial, local ou municipal; notas falsas de banco ou outros papeis de credito publico; e falsos sinetes, selos, estampilhas, cunhos e marcas de Estado ou da administracao publica;

15. Importacao de instrumentos para a fabricacao de moedametalica, ou papel-moeda ou notas de banco falsas;

16. Apropriacao indebita por qualquer pessoa ou pessoas contratadas, assalariadas ou empregadas, em detrimento dos respectivos empregadores ou mandantes;

17. Furto;

18. Obtencao de dinheiro, titulos de valor ou outros bens por meio de falsas alegacoes ou ameacas de violencia;

19. Receptacao de dinheiro, titulos de valor ou outros bens, sabendo que foram obtidos ilegalmente;

20. Fraude, ou abuso de confianca, por fiador, banqueiro, agente, comissario, depositario, executor, administrador, tutor, diretor ou funcionario de companhia ou sociedade anonima, ou por qualquer pessoa em posicao fiduciaria;

21. Desamparo ou abandono, deliberado, de menor ou outra pessoa dependente, quando resultar morte ou lesao corporal grave;

22. Falso testemunho (inclusive falsa pericia); suborno de testemunha ou perito;

23. Solicitar, receber ou oferecer suborno;

24. Concussao; peculato;

25. Crimes ou delitos falimentares;

26. Crimes ou delitos contra as leis de ambos os paises para a supressao da escravidao e do trafico de escravos;

27. Crimes ou delitos contra as leis relativas ao trafico, uso, ou producao ou manufatura de narcoticos ou “cannabis”;

28. Crimes ou delitos contra as leis relativas a manufatura ou trafico ilicito de substancias prejudiciais a saude, ou de produtos quimicos venenosos;

29. Contrabando, definido como sendo o ato de, propositadamente e com conhecimento de causa, violar as leis alfandegarias, com a intencao de defraudar a arrecadacao da renda, pelo trafico internacional de mercadoria sujeita a pagamento de direitos;

30. Ajuda a fuga de prisioneiro pela forca de armas;

31. Uso de explosivos de modo a por em perigo a vida humana ou a propriedade;

32. Lenocinio e trafico de mulheres, definido como a obtencao ou o transporte de menor do sexo feminino, ainda que com o consentimento da mesma, para fins imorais, ou de mulher adulta, por fraude, ameacas ou coercao, para tais fins, com vistas a, em qualquer dos casos, satisfazer a lascivia de outrem; aproveitar-se da prostituicao alheia;

33. Tentativa de qualquer dos crimes ou delitos acima, quando prevista como figura delituosa autonoma pelas leis dos Estados Contratantes;

34. Participacao em qualquer dos crimes acima.

ARTIGO 3.

Salvo disposicao em contrario do presente Tratado, o Estado requerido so extraditara o individuo acusado ou condenado por qualquer crime ou delito enumerado no Artigo 2. quando se verifiquem ambas as condicoes seguintes:

1. A lei do Estado requerente, em vigor no momento em que o crime ou o delito foi cometido, comina pena de privacao da liberdade que possa exceder de um ano; e

2. A lei em vigor no Estado requerido comina, em geral, para o mesmo crime ou delito, quando cometido em seu territorio, pena de privacao da liberdade que possa exceder de um ano.

ARTIGO 4.

Quando o crime ou delito tiver sido cometido fora da jurisdicao territorial do Estado requerente, o pedido de extradicao podera nao ter andamento se as leis do Estado requerente e as do Estado requerido nao autorizam a punicao de tal crime ou delito, nesse caso.

Para efeitos deste artigo e do artigo 1. do presente Tratado, a expressao “jurisdicao territorial” significa: o territorio, inclusive as aguas territoriais, e o espaco aereo superjacente, pertencente a, ou sob o controle de, um dos Estados Contratantes; e embarcacoes e aeronaves pertencentes a um dos Estados Contratantes ou a cidadao ou empresa dos mesmos, quando tal embarcacao estiver em alto mar ou tal aeronave sobre o alto mar.

ARTIGO 5.

Nao sera concedida a extradicao em qualquer das seguintes circunstancias:

1. Quando o Estado requerido, sendo competente, segundo suas leis, para processar o individuo, cuja entrega e pedida, pelo crime ou delito que determinou o pedido de extradicao, pretenda exercer sua jurisdicao;

2. Quando o individuo cuja entrega e pedida ja tenha sido julgado ou, ao tempo do pedido, esteja sendo processado no Estado requerido, pelo crime ou delito que ocasionou o pedido de extradicao;

3. Quando a acao ou a pena, pelo crime ou delito cometido, ja tenha prescrito, segundo as leis, quer do Estado requerente quer do requerido;

4. Quando o reclamado tiver que comparecer, no Estado requerente, perante Tribunal ou Corte de excecao;

5. Quando o crime ou delito, que ocasionou o pedido de extradicao, for puramente militar;

6. Quando o crime ou delito, que ocasionou o pedido de extradicao, for de carater politico. Entretanto:

a. A alegacao, pelo individuo reclamado, de que o pedido de sua extradicao tem fim ou motivo politico, nao impedira a entrega do extraditando se o crime ou delito, que justifica o pedido de extradicao, for principalmente uma infracao da lei penal comum. Em tal caso, a entrega do extraditando ficara dependente de compromisso, da parte do Estado requerente, de que o fim, ou motivo politico nao concorrera para agravar a pena;

b. os atos delituosos que constituem francas manifestacoes de anarquismo ou visam a subversao da base de toda organizacao politica nao serao reputados crimes ou delitos politicos;

c. a apreciacao do carater do crime ou delito cabera exclusivamente as autoridades do Estado requerido.

ARTIGO 6.

Quando ao crime ou delito, em que se baseia o pedido de extradicao, for aplicavel a pena de morte, segundo as leis do Estado requerente, e as leis do Estado requerido nao admitirem esta pena, o Estado requerido nao sera obrigado a conceder a extradicao, salvo se o Estado requerente der garantias, que satisfacam ao Estado requerido, de que a pena de morte nao sera imposta a tal pessoa.

ARTIGO 7.

Nao ha obrigacao para o Estado requerido de conceder a extradicao de um seu nacional. A autoridade executiva do Estado requerido, de acordo com as leis do mesmo, podera, entretanto, entregar um nacional do referido Estado se lhe parecer apropriado.

ARTIGO 8.

Os Estados Contratantes poderao solicitar, um do outro, por meio dos respectivos agentes diplomaticos ou consulares, a prisao preventiva de um fugitivo, assim como a apreensao dos objetos relativos ao crime ou delito.

O pedido de prisao preventiva sera concedido desde que o crime ou delito, em que se baseia o pedido de extradicao do fugitivo, seja um dos que justificam a extradicao, de acordo com o presente Tratado e desde que o pedido contenha:

1. Indicacao do crime ou delito do qual o fugitivo e acusado ou pelo qual foi sentenciado;

2. Descricao do individuo reclamado, para fins de identificacao;

3. Indicacao do paradeiro provavel do fugitivo, se conhecido; e

4. Declaracao de que existem e serao fornecidos os documentos relevantes exigidos pelo Artigo 9. do presente Tratado.

Se, dentro do prazo maximo de 60 dias, contados da data da prisao preventiva do fugitivo, de acordo com o presente Artigo, o Estado requerente nao apresentar o pedido formal de sua extradicao, devidamente instruido, o extraditando sera posto em liberdade e so se admitira novo pedido de extradicao se acompanhado dos documentos relevantes exigidos pelo Artigo 9. do presente Tratado.

ARTIGO 9.

O pedido de extradicao sera feito por via diplomatica ou, excepcionalmente, na ausencia de agentes diplomaticos, por agente consular, e sera instruido com os seguintes documentos:

1. No caso de individuo que tenha sido condenado pelo crime ou delito em que se baseia o pedido de extradicao: uma copia, devidamente certificada ou autenticada, da sentenca final do juizo competente;

2. No caso de individuo que e meramente acusado do crime ou delito em que se baseia o pedido de extradicao: uma copia, devidamente certificada ou autenticada, do mandado de prisao ou outra ordem de detencao expedida pelas autoridades competentes do Estado requerente, juntamente com os depoimentos que serviram de base a expedicao de tal mandado ou ordem e qualquer outra prova julgada habil para o caso.

Os documentos relacionados neste Artigo devem conter indicacao precisa do ato criminoso do qual o individuo reclamado e acusado ou pelo qual foi condenado e do lugar e data em que o mesmo foi cometido, e devem ser acompanhados de copia autenticada dos textos das leis aplicaveis do Estado requerente, inclusive as leis relativas a prescricao da acao ou da pena, e dados ou documentos que provem a identidade do individuo reclamado.

Os documentos que instruem o pedido de extradicao serao acompanhados de uma traducao, devidamente certificada, na lingua do Estado requerido.

ARTIGO 10

Quando a extradicao de um individuo for pedida por mais de um Estado, proceder-se-a da maneira seguinte:

1. Se os pedidos se referirem ao mesmo ato criminoso, sera dada preferencia ao pedido do Estado em cujo territorio o ato tiver sido cometido;

2. Se os pedidos se referirem a atos criminosos diferentes, sera dada preferencia ao pedido do Estado em cujo territorio tiver sido cometido o crime mais grave, a juizo do Estado requerido;

3. Se os pedidos se referirem a atos criminosos diferentes, mas que o Estado requerido repute de igual gravidade, a preferencia sera determinada pela prioridade do pedido.

ARTIGO 11

A concessao, ou nao, da extradicao pedida sera feita de acordo com o direito interno do Estado requerido, e o individuo cuja extradicao e desejada tera o direito de usar os recursos autorizados por tal direito.

ARTIGO 12

Se, ao serem examinados pelas autoridades competentes do Estado requerido os documentos submetidos pelo Estado requerente, exigidos pelo Artigo 9. do presente Tratado para instrucao do pedido de extradicao, parecer que tais documentos nao constituem prova suficiente para a extradicao nos termos do presente Tratado, tal individuo sera posto em liberdade, salvo se o Estado requerido, ou um juizo competente do mesmo, ordenar, de conformidade com as respectivas leis, uma prorrogacao para que o Estado requerente apresente prova adicional.

ARTIGO 13

Concedida a extradicao, o Estado requerido comunicara imediatamente ao Estado requerente que o extraditando se encontra preso a sua disposicao.

Se dentro de 60 dias, contados de tal comunicacao, o individuo reclamado nao tiver sido entregue e transportado para fora da jurisdicao do Estado requerido, sera ele posto em liberdade, exceto quando a entrega nao puder efetuar-se por motivo de forca maior, ou em consequencia de ato do extraditando ou da aplicacao dos Artigos 14 ou 15 do presente Tratado.

ARTIGO 14

Quando o individuo, cuja extradicao e pedida, estiver sendo processado criminalmente ou cumprindo sentenca no Estado requerido, a entrega do mesmo, nos termos do presente Tratado, sera adiada ate que a referida acao penal ou sentenca termine por qualquer das seguintes razoes: rejeicao da acao, absolvicao, expiracao do prazo da sentenca ou do prazo em que tal sentenca tiver sido comutada, indulto, livramento condicional ou anistia.

ARTIGO 15

Quando, na opiniao de autoridade medica competente, devidamente atestada, o individuo, cuja extradicao e pedida, nao puder ser transportado do Estado requerido para o Estado requerente sem perigo serio de vida em virtude de doenca grave, sua entrega, de acordo com o presente Tratado, sera adiada ate que o perigo tenha sido suficientemente afastado, na opiniao da autoridade medica competente.

ARTIGO 16

O Estado requerente podera enviar ao Estado requerido um ou mais agentes, devidamente autorizados, quer para auxiliarem no reconhecimento do individuo reclamado, quer para o receberem e conduzi-lo para fora do territorio do Estado requerido.

Tais agentes, quando no territorio do Estado requerido, ficarao subordinados as leis deste, mas os gastos que fizerem correrao por conta do Estado que os tiver enviado.

ARTIGO 17

As despesas relativas ao transporte do extraditado serao pagas pelo Estado requerente. Os funcionarios competentes da justica do pais em que se processe a extradicao devem, por todos os meios legais a seu alcance, auxiliar os funcionarios do Estado requerente, perante os juizes e magistrados competentes. Nenhuma reclamacao pecuniaria, resultante da prisao, detencao, exame e entrega de fugitivos, nos termos do presente Tratado, podera ser feita pelo Estado requerido contra o Estado requerente a nao ser as especificadas no 2. paragrafo deste Artigo e as que digam respeito ao alojamento e manutencao do extraditando, anteriores a sua entrega.

Os funcionarios da justica, ou outros do Estado requerido e estenografos judiciarios do Estado requerido que, no curso normal de suas atribuicoes, prestarem assistencia, e que nao recebem salario ou compensacao alguma alem de retribuicao especifica por servicos prestados, terao direito a receber do Governo requerente o pagamento usual por tais atos, ou servicos, da mesma forma, e na mesma importancia, como se tais atos ou servicos tivessem sido prestados em processo criminal ordinario sob as leis do pais de que sao funcionarios.

ARTIGO 18

O individuo que, depois de entregue por qualquer dos Estados Contratantes ao outro, segundo as disposicoes do presente Tratado, lograr fugir do Estado requerente e se refugiar no territorio do Estado que o entregou, ou por ele passar em transito, sera detido, mediante simples requisicao diplomatica, e entregue, de novo, sem outras formalidades, ao Estado a que fora concedida sua extradicao.

ARTIGO 19

O transito, pelo territorio de um dos Estados Contratantes, de individuo, sob custodia de agente do outro Estado e entregue a este por terceiro Estado, e que nao seja da nacionalidade do pais de transito, sera permitido, sujeito as disposicoes do segundo paragrafo deste Artigo, independentemente de qualquer formalidade judiciaria, quando solicitado por via diplomatica, com a apresentacao, em original ou em copia autenticada, do documento pelo qual o Estado de refugio tiver concedido a extradicao. Nos Estados Unidos da America, a autorizacao do Secretario de Estado dos Estados Unidos da America, tera que ser obtida previamente.

A permissao contemplada neste Artigo podera, no entanto, ser negada se o fato determinante da extradicao nao constitui crime ou delito enumerado no Artigo 2. do presente Tratado, ou quando graves motivos de ordem publica se oponham ao transito.

ARTIGO 20

Ressalvados os direitos de terceiros, que serao devidamente respeitados:

1. Todos os objetos, valores ou documentos que se relacionarem com o crime ou delito e, no momento da prisao, tenham sido encontrados em poder do extraditando, ou que, de qualquer outra maneira, tiverem sido encontrados na jurisdicao do Estado requerido, serao entregues, com o extraditado, ao Estado requerente;

2. Os objetos e valores que se encontrarem em poder de terceiros, e tenham igualmente relacao com o crime ou delito, serao tambem apreendidos, mas so serao entregues depois de resolvidas as objecoes opostas pelos referidos terceiros.

ARTIGO 21

O individuo, extraditado em virtude deste Tratado, nao sera julgado ou punido pelo Estado requerente por nenhum crime ou delito, cometido anteriormente ao pedido de sua extradicao, que nao seja o que deu lugar ao pedido, nem podera ser re-extraditado pelo Estado requerente para terceiro pais que o reclame, salvo se nisso convier o Estado requerido, ou se o extraditado, posto em liberdade no Estado requerente, permanecer, voluntariamente, no Estado requerente por mais de 30 dias, contados da data em que tiver sido solto. Ao ser posto em liberdade, o interessado devera ser informado das consequencias a que o exporia sua permanencia no territorio do Estado requerente.

ARTIGO 22

O presente Tratado sera ratificado e as ratificacoes serao trocadas em Washington tao cedo quanto possivel.

O presente Tratado entrara em vigor um mes depois da data da troca de ratificacoes. Podera ser denunciado a qualquer momento por qualquer dos Estados Contratantes, mediante notificacao ao outro Estado Contratante, terminando-se o Tratado seis meses depois da data da referida notificacao.

EM FE DO QUE, os Plenipotenciarios acima nomeados firmam o presente Tratado e nele apuseram seus respectivos selos.

FEITO em dois exemplares, nas linguas inglesa e portuguesa, ambos igualmente autenticos, no Rio de Janeiro, aos treze dias do mes de janeiro de mil novecentos e sessenta e um.

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Brazil Extradition Treaty-Protocol with the United States

June 18, 1962, Date-Signed

December 17, 1964, Date-In-Force

The United States of America and the United States of Brazil,

Having concluded at Rio de Janeiro, on January 13, 1961, a Treaty of Extradition for the purpose of making more effective the cooperation between the two countries in the repression of crime,

And desiring to make clear that their respective nationals will be subject to extradition only if the constitutional and legal provisions in force in their territories permit it,

Have resolved to sign an Additional Protocol to the aforementioned Treaty of Extradition and, to this end, have appointed the following Plenipotentiaries:

The President of the United States of America: His Excellency Lincoln Gordon, Ambassador Extraordinary and Plenipotentiary to Brazil, and

The President of the Republic of the United States of Brazil: His Excellency Francisco Clementino de San Tiango Dantas, Minister of State for External Relations,

Who, having communicated to each other their respective full powers, found to be in good and due form, agree as follows:

ARTICLE I

Article VII of the Treaty of Extradition concluded between the two countries at Rio de Janeiro, on January 13, 1961, shall be interpreted as follows:

“The Contracting Parties are not obliged by this Treaty to grant extradition of their nationals. However, if the Constitution and laws of the requested State do not prohibit it, its executive authority shall have the power to surrender a national if, in its discretion, it be deemed proper to do so.”

ARTICLE II

The present Protocol shall enter into force on the same date as the Treaty of Extradition of January 13, 1961, and shall cease to be effective on the date of the termination of the Treaty.

IN WITNESS HEREOF, the respective Plenipotentiaries have signed the present Additional Protocol and have fixed hereunto their seals.

DONE in duplicate, in the English and Portuguese languages, both equally authentic, at Rio de Janeiro, on this eighteenth day of June, one thousand nine hundred sixty-two.

PROTOCOLO ADICIONAL AO TRATADO DE EXTRADICAO DE 13 DE JANEIRO DE 1961 ENTRE OS ESTADOS UNIDOS DA AMERICA E OS ESTADOS UNIDOS DO BRASIL

Os Estados Unidos da America e os Estados Unidos do Brasil,

Havendo concluido no Rio de Janeiro, a 13 de janeiro de 1961, um Tratado de Extradicao para o fim de tornar mais eficaz a cooperacao entre os dois paises na repressao ao crime,

E desejando deixar bem claro que os seus respectivos nacionais somente serao passiveis de extradicao se o permitirem os preceitos constitucionais e legais vigentes nos territorios de ambos,

Resolveram assinar um Protocolo Adicional ao referido Tratado de Extradicao e, para esse fim, nomearam seus Plenipotenciarios, a saber:

O Presidente dos Estados Unidos da America: Sua Excelencia o Senhor Lincoln Gordon, Embaixador Extraordinario e Plenipotenciario no Brasil, e O Presidente da Republica dos Estados Unidos do Brasil: Sua Excelencia o Senhor Francisco Clementino de San Tiago Dantas, Ministro de Estado das Relacoes Exteriores,

Os quais, depois de haverem exibido e trocado os seus Plenos Poderes, achados em boa e devida forma, convieram no seguinte:

ARTIGO 1

O Artigo 7 do Tratado de Extradicao concluido entre os dois paises no Rio de Janeiro, a 13 de janeiro de 1961, deve ser interpretado da seguinte maneira:

“As Partes Contratantes nao se obrigam, pelo presente Tratado, a entregar um seu nacional. Contudo, se os preceitos constitucionais e as leis do Estado requerido nao o proibirem, a autoridade executiva do Estado requerido podera entregar um nacional, se lhe parecer apropriado.”

ARTIGO 2

O presente Protocolo entrara em vigor na mesma data que o Tratado de Extradicao de 13 de janeiro de 1961 e cessara os seus efeitos quando este ultimo deixar de vigorar.

EM FE DO QUE, OS Plenipotenciarios acima nomeados firmam o presente Protocolo Adicional e nele apoem seus respectivos selos.

FEITO no Rio de Janeiro, em dois exemplares, nas linguas inglesa e portuguesa, ambos igualmente autenticos, aos dezoito dias do mes de junho de mil novecentos e sessenta e dois.

WHEREAS the Senate of the United States of America by their resolution of May 16, 1961, two-thirds of the Senators present concurring therein, did advise and consent to the ratification of the treaty and by their resolution of October 22, 1963, two-thirds of the Senators present concurring therein, did advise and consent to the ratification of the additional protocol;

WHEREAS the President of the United States of America ratified the treaty on May 29, 1961 and the additional protocol on October 29, 1963, in pursuance of the advice and consent of the Senate, and the Government of the United States of Brazil has duly ratified the treaty and the additional protocol;

WHEREAS the respective instruments of ratification of the treaty and the additional protocol were duly exchanged at Washington on November 17, 1964;

AND WHEREAS it is provided in Article XXII of the treaty that the treaty shall enter into force one month after the date of exchange of ratifications, and it is provided in Article II of the additional protocol that the additional protocol shall enter into force on the same date as the treaty;

NOW, THEREFORE, be it known that I, Lyndon B. Johnson, President of the United States of America, do hereby proclaim and make public the said treaty and additional protocol, to the end that the same and every article and clause thereof may be observed and fulfilled in good faith on and after December 17, 1964, one month after the day of exchange of instruments of ratification, by the United States of America and by the citizens of the United States of America and all other persons subject to the jurisdiction thereof.

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the Seal of the United States of America to be affixed.

DONE at the city of Washington this twentieth day of November in the year of our Lord one thousand nine hundred sixty-four and of the Independence of the United States of America the one hundred eighty-ninth.

SIGNATORIES:

JOHN M CABOT

HORACIO LAFER

LINCOLN GORDON

F C DE SAN TIAGO DANTAS

LYNDON B. JOHNSON

By the President:

GEORGE W BALL

Acting Secretary of State

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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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Bosnia and Herzegovina Extradition Treaty with the United States

April 8, 2011

Bosnia and Herzegovina (Former Yugoslavia) International Extradition Treaty with the United States

October 25, 1901, Date-Signed

June 12, 1902, Date-In-Force (Under Review)

Treaty between the United States and Servia for the mutual extradition of fugitives from justice.

It was Signed at Belgrade on October 25, 1901. Ratification was advised by the Senate on January 27, 1902. It was Ratified by the President on March 7, 1902. It was Ratified by Servia on March 17, 1902. Ratifications were exchanged at Belgrade on May 13, 1902 and it was Proclaimed on May 17, 1902.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.

A PROCLAMATION.

Whereas a Treaty between the United States of America and Servia providing for the extradition of fugitives from justice was concluded and signed by their respective Plenipotentiaries at Belgrade on the twenty-fifth (twelfth) day of October, one thousand nine hundred and one, the original of which Treaty, being in the English and Servian languages, is word for word as follows:

The United States of America and His Majesty the King of Servia, being desirous to confirm their friendly relations and to promote the cause of Justice, have resolved to conclude a treaty for the extradition of fugitives from justice between the United States of America and the Kingdom of Servia, and have appointed for that purpose the following Plenipotentiaries:

The President of the United States of America, Charles S. Francis, Envoy Extraordinary and Minister Plenipotentiary to His Majesty the King of Servia.

His Majesty the King of Servia, M. Michel V. Vouïtch, President of His Council of Ministers, Minister for Foreign Affairs, Senator, Grand Officer of the Order of Milosh the Great, Grand Cross of the Order of Takovo, Officer of the Order of the White Eagle etc., who, after having communicated to each other their respective full powers, found in good and due form, have agreed upon and concluded the following articles:

ARTICLE I.

The Government of the United States and the Government of Servia mutually agree to deliver up persons who, having been charged with or convicted of any of the crimes and offenses specified in the following article, committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been committed there.

ARTICLE II.

Extradition shall be granted for the following crimes and offenses:

1. Murder, comprehending assassination, parricide, infanticide, and poisoning; attempt to commit murder; manslaughter, when voluntary.

2. Arson.

3. Robbery, defined to be the act of feloniously and forcibly taking from person of another money or goods, by violence or putting him in fear; burglary, defined to be the act of breaking, and entering by night, into the dwelling house of another, with intent to commit felony; housebreaking or shop breaking.

4. Forgery or the utterance of forged papers; the forgery or falsification of official acts of government, of public authorities, or of courts of justice, or the utterance of the thing forged or falsified.

5. The counterfeiting, falsifying or altering of money, whether coin or paper, or of instruments of debt created by national, state, provincial, or municipal governments, or of coupons thereof, or of banknotes, or the utterance or circulation of the same; or the counterfeiting, falsifying or altering of seals, dies or stamps of state; of postage and revenue stamps.

6. Embezzlement by public officers; embezzlement by persons hired or salaried, to the detriment of their employers; larceny; obtaining money, valuable securities or other property by false pretenses, or receiving money, valuable securities or other property, knowing the same to have been embezzled, stolen or fraudulently obtained, when such act is made criminal by the laws of both countries and the amount of money or the value of the property fraudulently obtained or received, is not less than two hundred dollars or one thousand francs in gold.

7. Fraud or breach of trust by a bailee, banker, agent, factor, trustee, or other person acting in a fiduciary capacity, or director or member or officer of any company, when such act is made criminal by the laws of both countries and the amount of money or the value of the property misappropriated is not less than two hundred dollars or one thousand francs in gold.

8. Perjury; subornation of perjury.

9. Rape; abduction; kidnapping.

10. Wilful and unlawful destruction or obstruction of railroads which endangers human life.

11. Crimes committed at sea:

a. Piracy, by statute or by the law of nations.

b. Revolt, or conspiracy to revolt, by two or more persons on board a ship on the high seas against the authority of the master.

c. Wrongfully sinking or destroying a vessel at sea, or attempting to do so.

d. Assaults on board a ship on the high seas with intent to do grievous bodily harm.

12. Crimes and offenses against the laws of the United States of America for the suppression of slavery and slave trading.

Extradition is also to take place for participation in any of the crimes and offenses mentioned in this Treaty, provided such participation may be punished in the United States as felony and in Servia as crime or offense as before specified.

ARTICLE III.

Requisitions for the surrender of fugitives from justice shall be made by the Governments of the high contracting parties through their diplomatic agents, or in the absence of such through their respective superior consular officers.

If the person whose extradition is requested shall have been convicted of a crime or offense, a duly authenticated copy of the sentence of the Court in which he has been convicted, or if the fugitive is merely charged with crime, a duly authenticated copy of the warrant of arrest in the country where the crime has been committed, and of the depositions or other evidence upon which such warrant was issued, shall be produced.

The extradition of fugitives under the provisions of this Treaty shall be carried out in the United States and in Servia, respectively, in conformity with the laws regulating extradition for the time being in force in the State on which the demand for surrender is made.

ARTICLE IV.

Where the arrest and detention of a fugitive in the United States are desired on telegraphic or other information in advance of the presentation of formal proofs, complaint on oath, as provided by the statutes of the United States, shall be made by an agent of the Government of Servia before a judge or other magistrate authorized to issue warrants of arrest in extradition cases.

In the Kingdom of Servia the diplomatic or consular officer of the United States shall apply to the Foreign Office, which will immediately cause the necessary steps to be taken in order to secure the provisional arrest and detention of the fugitive.

The provisional detention of a fugitive shall cease and the prisoner be released if a formal requisition for his surrender, accompanied by the necessary evidence of criminality, has not been produced under the stipulations of this Treaty, within two months from the date of his provisional arrest and detention.

ARTICLE V.

Neither of the high contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this Treaty.

ARTICLE VI.

A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.

No person surrendered by either of the high contracting parties to the other shall be triable or tried, or be punished, for any political crime or offense, or for any act connected therewith, committed previously to his extradition.

If any questions shall arise as to whether a case comes within the provisions of this article, the decision of the authorities of the Government on which the demand for surrender is made, or which may have granted the extradition, shall be final.

ARTICLE VII.

Extradition shall not be granted, in pursuance of the provisions of this Treaty, if legal proceedings or the enforcement of the penalty for the act committed by the person claimed has become barred by limitation, according to the laws of the country to which the requisition is addressed.

ARTICLE VIII.

No person surrendered by either of the high contracting parties to the other shall, without his consent, freely granted and publicly declared by him, be triable or tried or be punished for any crime or offense committed prior to his extradition, other than that for which he was delivered up, until he shall have had an opportunity of returning to the country from which he was surrendered.

ARTICLE IX.

All articles seized which are in the possession of the person to be surrendered at the time of his apprehension, whether being the proceeds of the crime or offense charged, or being material as evidence in making proof of the crime or offense, shall, so far as practicable and in conformity with the laws of the respective countries, be given up to the Country making the demand, when the extradition takes place. Nevertheless, the rights of third parties with regard to such articles shall be duly respected.

ARTICLE X.

If the individual claimed by one of the high contracting parties, in pursuance of the present Treaty, shall also be claimed by one or several other powers on account of crimes or offenses committed within their respective jurisdictions, his extradition shall be granted to the State whose demand is first received: Provided, that the Government from which extradition is sought is not bound by treaty to give preference otherwise.

ARTICLE XI.

The expenses incurred in the arrest, detention, examination, and delivery of fugitives under this Treaty shall be borne by the State in whose name the extradition is sought: Provided, that the demanding Government shall not be compelled to bear any expense for the services of such public officers of the Government from which extradition is sought as received a fixed salary; and, provided, that the charge for the services of such public officers as receive only fees or perquisites shall not exceed their customary fees for the acts or services performed by them had such acts or services been performed in ordinary criminal proceedings under the laws of the country of which they are officers.

The present Treaty shall take effect on the thirtieth day after the date of the exchange of ratifications and shall not act retroactively.

The ratifications of the present Treaty shall be exchanged at Belgrade as soon as possible, and it shall remain in force for a period of six months after either of the contracting Governments shall have given notice of a purpose to terminate it.

In witness whereof, the respective Plenipotentiaries have signed this Treaty in duplicate and have hereunto affixed their seals.

Done at Belgrade this twenty-fifth (twelfth) day of October in the year of our Lord one thousand nine hundred and one.

CHARLES S. FRANCIS.

DR MICHEL VOUÏTCH

And Whereas the said Treaty has been duly ratified on both parts, and the ratifications of the two governments were exchanged in the City of Belgrade, on the thirteenth day of May, one thousand nine hundred and two;

Now therefore, be it known that I, Theodore Roosevelt, President of the United States of America, have caused the said Treaty to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof.

In testimony whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the City of Washington, this seventeenth day of May in the year of our Lord one thousand nine hundred and two, and of the Independence of the United States the one hundred and twenty-sixth.

THEODORE ROOSEVELT

JOHN HAY

Secretary of State.

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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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Bolivia Extradition Treaty with the United States

April 7, 2011

Bolivia International Extradition Treaty with the United States

June 27, 1995, Date-Signed

November 21, 1996, Date-In-Force

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

104TH CONGRESS

SENATE

LETTER OF TRANSMITTAL

THE WHITE HOUSE, October 10, 1995.

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 Government of the United States of America and the Government of the Republic of Bolivia, signed at La Paz on June 27, 1995.

I transmit also, for the information of the Senate, the report of the Department of State with respect to the Treaty, and copies of diplomatic notes dated June 27, 1995, which were exchanged at the time of signing of the Treaty. Those notes set forth the expectations of the two Governments regarding the types of assistance each Government would provide to the other in extradition proceedings, pursuant to Article XVI of the Treaty.

The Treaty establishes the conditions and procedures for extradition between the United States and Bolivia. It also provides a legal basis for temporarily surrendering prisoners to stand trial for crimes against the laws of the Requesting State.

The Treaty represents an important step in combatting narcotics trafficking and terrorism, by providing for the mandatory extradition of nationals of the Requested State in a broad range of serious criminal offenses.

The provisions in this Treaty are substantively similar to those of other extradition treaties recently concluded by the United States.

This Treaty will make a significant contribution to international cooperation in law enforcement. I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.

WILLIAM J. CLINTON.

LETTER OF SUBMITTAL

DEPARTMENT OF STATE,

Washington, September 22, 1995.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Treaty between the Government of the United States of America and the Government of the Republic of Bolivia on Extradition (the “Treaty”), signed at La Paz on June 27, 1995. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification.

Also enclosed, for the information of the Senate, are copies of diplomatic notes, dated June 27, 1995, which were exchanged by the Government of the United States and the Government of the Republic of Bolivia at the time the Treaty was signed. The notes set forth the Governments’ expectations regarding the types of assistance each Government would provide to the other, pursuant to Article XVI of the Treaty, in extradition proceedings.

The Treaty is substantively similar to other extradition treaties recently concluded by the United States. It represents a concerted effort by the Department of State and the Department of Justice to modernize the legal tools available for the extradition of serious offenders such as narcotics traffickers and terrorists. The Treaty will supersede the Treaty of Extradition currently in force between the United States and Bolivia, signed at La Paz April 21, 1900.

Article I obligates each Party to extradite to the other, pursuant to the provisions of the Treaty, any person charged with, found guilty of, or sentenced for an offense described in Article II.

In Article II, the Parties agree that an offense shall be extraditable if it is punishable under the laws of both parties by deprivation of liberty for a maximum period of more than one year or by a more severe penalty. The Article also provides that attempts or conspiracies to commit such offenses, or participation or association in their commission, are also extraditable offenses. Inclusion of a dual-criminality clause without a list of specific offenses covered by the Treaty (such as was included in older extradition treaties), obviates the need to renegotiate or supplement the Treaty as offenses become punishable under the laws of both parties.

Among other things, Article II further provides that in determining whether an offense is covered under the Treaty, it shall be irrelevant whether or not the laws in the Contracting Parties place the offenses within the same category of offenses, contain the same elements, or describe the offense by the same terminology, as long as the underlying conduct is criminal in both States. With regard to offenses committed outside the territory of the Requesting State, the Article specifies that an offense covered under the Treaty shall be an extraditable one regardless of where the act or acts constituting the offense were committed.

Article II also provides that, if extradition has been granted for an extraditable offense, it shall likewise be granted for any other offense specified in the extradition request, even if the latter is punishable by one year or less of deprivation of liberty, provided that all other requirements for extradition are met.

Article III grants discretion to each Party to deny extradition of its own nationals, except with respect to certain specified offenses as to which extradition is mandatory irrespective of nationality. Such offenses include those with respect to which there is an obligation to establish criminal jurisdiction pursuant to multilateral international treaties in force with respect to the Parties, including the United Nations Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on December 20, 1988, and certain international conventions against terrorism.

Article III also renders mandatory the extradition of nationals for certain specified offenses, including, inter alia, murder, kidnapping, rape, drug- and terrorism-related offenses, and organized criminal activity. This provision also contains a catch-all for offenses punishable in both States by deprivation of liberty for a maximum period of at least ten years. Finally, extradition of nationals is mandatory for an attempt or conspiracy to commit, participation in, or association regarding the commission of any of the offenses described in the Article.

Article IV sets forth bases for the discretionary denial of extradition. Article IV(1) provides that, when an offense for which extradition is sought is punishable by death under the laws of the Requesting State and is not so punishable under the laws of the Requested State, the Executive Authority of the Requested State may refuse extradition, unless the Requesting State provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Article IV(2) allows the Parties to deny extradition for offenses under military law which are not offenses under ordinary criminal law.

Article V describes the bases for the non-discretionary denial of extradition. Article V(1) states that extradition shall not be granted for political offenses. However, the provision expressly excludes from the reach of this exception several categories of offenses:

(a) a murder of other willful crime against the person of a Head of State of one of the Contracting States, or of a member of the Head of State’s family;

(b) an offense for which both Parties are obliged pursuant to a multilateral international treaty to establish criminal jurisdiction (e.g., aircraft hijacking pursuant to The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague December 16, 1970, and entered into force October 14, 1971; aircraft sabotage pursuant to the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal September 23, 1971, and entered into force January 26, 1973; narcotics trafficking under the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna December 20, 1988, and entered into force November 11, 1990; and the Single Convention on Narcotic Drugs, done at New York on March 30, 1961, and entered into force December 13, 1964; and

(c) a conspiracy or attempt to commit any of the offenses described above, or aiding or abetting a person who commits or attempts to commit those offenses.

Article V(2) bars extradition when the person sought has been convicted or acquitted in the Requested State for the same offense, but does not bar extradition if the competent authorities in the Requested State have declined to prosecute or have decided to discontinue criminal proceedings previously initiated against the person sought for that offense.

Articles VI and VII address the procedures by which extradition is to be accomplished. Article VI describes the documents that are required to support a request for extradition. Article VII establishes the procedures under which documents submitted pursuant to Article VI shall be received and admitted into evidence in the Requested State. Article VII also provides that all documents submitted by the Requesting State shall be translated into the language of the Requested State, at the expense of the Requesting State.

Article VIII provides for the provisional arrest and detention of the person sought for no more than sixty days pending receipt by the Requested State of a fully documented extradition request in conformity with Article VI. The Article explicitly states that the release of the person sought upon expiration of the sixty-day period does not prejudice subsequent rearrest and extradition upon later delivery of the extradition request and supporting documents.

Article IX specifies the procedures to govern the surrender and return of fugitives. The Requested State is requested to notify promptly the Requesting State of its decision on extradition and, if the request is denied in whole or in part, to provide an explanation for its denial. If the request is granted, and surrender is authorized, the person sought must be removed from the territory of the Requested State within the time prescribed by the laws or regulations (if any) of the Requested State.

Article X sets forth criteria for decision by the Parties in cases where multiple States request the extradition of the same person.

Article XI provides that is a person is being prosecuted or is serving a sentence in the Requested State, that State may (a) temporarily surrender the person to the Requesting State solely for the purpose of prosecution, or (b) defer surrender until the proceedings are concluded or the sentence is served.

Article XII sets forth the rule of speciality for this treaty. It provides, subject to specific exceptions, that a person extradited under the Treaty may not be detained, tried, convicted, or punished for an offense other than that for which extradition has been granted. Similarly, the Requesting State may not surrender or transfer such person to a third State for an offense committed prior to the person’s surrender under this Treaty. The Article articulates several exceptions to this rule: if the surrendering State consents; if the person extradited fails to leave the Requesting State within thirty days of being free to do so; or if, having left the Requesting State, the extradited person voluntarily returns to it.

Article XIII permits surrender of the person sought without further proceedings if that person gives his or her consent.

Article XIV provides that, to the extent permitted under its law, and with due respect to the rights of third parties, the Requested State may seige and surrender to the Requesting State property related to the offense for which extradition is requested.

Article XV governs the transit through a Party’s territory of a person being surrendered to the other Party by a third State.

Article XVI contains provisions on representation, consultation, and expenses. Specifically, the competent authorities of the Requested State are required, by all legal means within their power, to advise, assist and represent the interests of the Requesting State in connection with the processing of extradition cases in the Requested State. Further, the parties agree, pursuant to this Article, to consult with each other to maintain and improve the procedures for implementation of the Treaty. The Requesting State shall bear the expenses related to the translation of documents and the transportation of the person surrendered. The Article also specifies that neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, custody, examination, or surrender of a person sought under the Treaty. At the time the Treaty was signed, the Governments of the United States and the Republic of Bolivia exchanged diplomatic notes setting forth their expectations regarding the types of assistance each Government would provide to the other in extradition proceedings. A copy of those notes is provided to the Senate for its information.

Article XVII, like analogous provisions in almost all recent United States extradition treaties, states that the Treaty is retroactive, in that it shall apply to offenses committed before as well as after the date the Treaty enters into force. In addition, the Treaty will apply to cases still pending at the time of its entry into force.

Article XVIII contains final clauses dealing with the Treaty’s ratification, entry into force and termination. Paragraph 1 states that the Treaty shall be subject to ratification; that the instruments of ratification shall be exchanged as soon as possible; and that the Treaty shall enter into force upon the exchange of instruments of ratification. Paragraph 2 provides that upon entry into force of the Treaty, the Treaty of Extradition done at La Paz on April 21, 1900, shall cease to have effect. Paragraph 3 provides that either Party may terminate the Treaty at any time by giving written notice to the other Party, which termination shall be effective six months after the date of notice.

A Technical Analysis explaining in detail the provisions of the Treaty is being prepared by the United States negotiating delegation and will be submitted separately to the Senate Committee on Foreign Relations.

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

Respectfully submitted.

WARREN CHRISTOPHER.

Enclosure: Diplomatic notes dated June 27, 1995.

EMBASSY OF THE UNITED STATES OF AMERICA,

June 27, 1995.

His Excellency Dr. ANTONIO ARANIBAR QUIROGA,

Minister of Foreign Affairs and Worship, La Paz.

EXCELLENCY: I have the honor to refer to the meetings between delegations representing the Government of the Republic of Bolivia and the Government of the United States, held at La Paz on May 22-24, 1995, to discuss a new bilateral extradition treaty. At those meetings, the delegations discussed the issue of mutual representation in extradition matters, and agreed that each country would provide to the other the greatest degree of representation and legal advice (at no cost to the other as would be permitted under its Constitution and laws.

Specifically, the United States delegation indicated at those meetings that, at a minimum, the United States would be able to provide the following services to the Government of Bolivia in connection with extradition requests: the United States Department of State will accept extradition requests from the Government of Bolivia, and review such requests for compliance with the extradition treaty. The Department of Justice will review each request and supporting documentation for compliance with U.S. evidentiary and other legal requirements. Pursuant to such review, the United States agencies will advise and counsel Bolivia on the strengths and weaknesses of each request, and the need for revisions in the request or for supplementary documentation. The Department of State will prepare a declaration that offense are extraditable and that documents were properly certified or authenticated for admission into evidence.

Further, the Department of Justice will submit the extradition file to the appropriate United States Attorney’s Office in the jurisdiction where the person sought is located, and will arrange for the arrest of the fugitive by filing a complaint for the issuance of an arrest warrant. The United States Attorney’s Office will present the request to the appropriate U.S. District Court. United States legal counsel will actively advocate Bolivia’s interests in all extradition proceedings in U.S. courts, including pre-hearing and post-hearing matters connected therewith. Such representation will include the filing of appropriate government motions, memoranda, and briefs in support of extradition; responding to defense motions and arguments; and presenting oral arguments in court. In addition, the United States undertakes to provide representation for Bolivia in opposing petitions for writs of habeas corpus and related appeals. Throughout the process, United States agencies will follow the progress of each extradition matter, and will keep the Government of Bolivia informed as appropriate or as requested.

At the May 22-24 meetings, the Government of Bolivia delegation indicated that the Government of Bolivia would, at a minimum, be able to provide the following services to the United States in connection with extradition requests: the Ministry of Foreign Affairs and Worship of Bolivia (“the Ministry”) will receive all U.S. requests for extradition; make, through the competent authorities, the necessary arrangements for the arrest of the person sought; and, for the purpose of assessing compliance with Bolivian evidentiary and other legal requirements, conduct a substantive review of documents submitted with the extradition request. The Ministry will advise the United States on the need for revision or supplementation of documents; properly organize the documents and dossier of the extradition request for presentation to the Supreme Court; and present such request and documents to the Supreme Court.

In addition, in conjunction with the Ministry of Justice, the Ministry will submit to the Supreme Court a written opinion or declaration regarding whether the offenses named in the request are extraditable, whether the request and supporting documentation were properly certified or authenticated for admission into evidence, and whether extradition would be appropriate under the terms of the extradition treaty. Finally, the Ministry will follow up and report on the progress of extradition cases, and advise the United States on the need to hire private counsel in instances where exceptional advocacy is deemed necessary.

The Government of the United States is pleased to express its understanding of the views expressed by the two governments’ delegations at the May 22-24, 1995 meetings, and looks forward to receiving from the Government of Bolivia confirmation of this understanding.

Accept, Excellency, the renewed assurances of my highest and most distinguished consideration.

CURT W. KAMMAN,

Ambassador.

REPUBLICA DE BOLIVIA,

MINISTERIO DE RELACIONES EXTERIORES Y CULTO,

June 27, 1995.

EXCELLENCY: I have the honor to acknowledge receipt of Your Excellency’s Note N: 220 dated today, which reads as follows:

EXCELLENCY: I have the honor to refer to the meetings between delegations representing the Government of the Republic of Bolivia and the Government of the United States, held at La Paz on May 22-24, 1995, to discuss a new bilateral extradition treaty. At those meetings, the delegations discussed the issue of mutual representation in extradition matters, and agreed that each country would provide to the other the greatest degree of representation and legal advice (at no cost to the other) as would be permitted under its Constitution and laws. Specifically, the United States delegation indicated at those meetings that, at a minimum, the United States would be able to provide the following services to the Government of Bolivia in connection with extradition request: the United States Department of State will accept extradition requests from the Government of Bolivia, and review such request for compliance with the extradition treaty. The Department of Justice will review each request and supporting documentation for compliance with U.S. evidentiary and other legal requirements. Pursuant to such review, the United States agencies will advise and counsel Bolivia on the strengths and weaknesses of each request, and the need for revisions in the request or for supplementary documentation. The Department of State will prepare a declaration that offenses are extraditable and that documents were properly certified or authenticated for admission into evidence.

Further, the Department of Justice will submit the extradition file to the appropriate United States Attorney’s Office in the jurisdiction where the person sought is located, and will arrange for the arrest of the fugitive by filing a complaint for the issuance of an arrest warrant. The United States Attorney’s Office will present the request to appropriate U.S. District Court. United States legal counsel will actively advocate Bolivia’s interests in all extradition proceedings in U.S. courts, including prehearing and post-hearing matters connected therewith. Such representation will include the filing of appropriate government motions, memoranda, and briefs in support of extradition; responding to defense motions and arguments; and presenting oral arguments in court. In addition, the United States undertakes to provide representation for Bolivia in opposing petitions for writs of habeas corpus and related appeals. Throughout the process, United States agencies will follow the progress of each extradition matter, and will keep the Government of Bolivia informed as appropriate or as requested.

At the May 22-24 meetings, the Government of Bolivia delegation indicated that the Government of Bolivia would, at a minimum, be able to provide the following services to the United States in connection with extradition requests: the Ministry of Foreign Affairs and Worship of Bolivia (“the Ministry”) will receive all U.S. requests for extradition; make, through the competent authorities, the necessary arrangements for the arrest of the person sought; and, for the purpose of assessing compliance with Bolivian evidentiary and other legal requirements, conduct a substantive review of documents submitted with the extradition request. The Ministry will advise the United States on the need for revision or supplementation of documents; properly organize the documents and dossier of the extradition request for presentation to the Supreme Court; and present such request and documents to the Supreme Court.

In addition, in conjunction with the Ministry of Justice, the Ministry will submit to the Supreme Court a written opinion or declaration regarding whether the offenses named in the request are extraditable, whether the request and supporting documentation were properly certified or authenticated for admission into evidence, and whether extradition would be appropriate under the terms of the extradition treaty. Finally, the Ministry will follow up and report on the progress of extradition cases, and advise the United States on the need to hire private counsel in instances where exceptional advocacy is deemed necessary.

The Government of the United States is pleased to express its understanding of the views expressed by the two governments’ delegations at the May 22-24, 1995 meetings, and looks forward to receiving from the Government of Bolivia confirmation of this understanding.

Accept, Excellency, the renewed assurance of my highest and most distinguished consideration.

CURT W. KAMMAN,

Ambassador.

In this regard, I have the honor to confirm to Your Excellency the concurrence of the Government of the Republic of Bolivia in the understanding contained in the preceding note.

I avail myself of this opportunity to renew to Your Excellency the assurance of my highest consideration.

DR. ANTONIO ARANIBAR QUIROGA,

Minister of Foreign Affairs and Worship.

TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF BOLIVIA ON EXTRADITION

The Government of the United States of America and the Government of the Republic of Bolivia (hereinafter also, “the Parties”),

Desiring to improve law enforcement cooperation between both countries;

Recognizing the importance of international cooperation and respect for the sovereignty and territorial integrity of States;

Taking into account treaties to which they are parties, including the Charters of the United Nations and the Organization of American States;

Recalling the extradition treaty between the United States of America and the Republic of Bolivia, signed on April 21, 1900;

Agree as follows:

ARTICLE I

Agreement to Extradite

The Parties agree, pursuant to the provisions and conditions of this Treaty, to surrender to each other persons who have been charged with, found guilty of, or sentenced for an extraditable offense by judicial authorities in the Requesting State.

ARTICLE II

Extraditable Offenses

1. An offense shall be an extraditable offense if it is punishable under the laws in both Parties by deprivation of liberty for a maximum period of more than one year or by a more severe penalty.

2. When a request is made for the extradition of a person who has been sentenced by the judicial authorities in the Requesting State, surrender shall be granted only if the remaining sentence to be served by the fugitive upon return would be in excess of six months.

3. To determine pursuant to paragraph 1 of this Article whether an offense is punishable under the laws in the Requested State, it shall be irrelevant:

(a) whether the laws in that State place the offense within the same category of offenses, contain identical elements, or describe the offense by the same terminology as the laws in the Requesting State, so long as the underlying conduct is criminal in both States;

(b) where the act or acts constituting the offense were committed; and

(c) whether the laws in the Requesting State require, for the purpose of establishing jurisdiction of its courts, evidence of interstate transportation, or the use of the mails or other facilities affecting interstate or foreign commerce, as elements of the specific offense.

4. An attempt or conspiracy to commit, participation in, or association regarding the commission of an offense shall constitute an extraditable offense, provided that the crime that was the object of such acts meets the requirements of paragraph 1 of this Article.

5. If extradition has been 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 one year or less of deprivation of liberty, provided that all other requirements for extradition are met.

ARTICLE III

Extradition of Nationals

1. Neither Party shall be obligated to extradite its own nationals, except when the extradition request refers to:

(a) offenses as to which there is an obligation to establish criminal jurisdiction pursuant to multilateral international treaties in force with respect to the Parties; or

(b) murder; voluntary manslaughter; kidnapping; aggravated assault; rape; sexual offenses involving children; armed robbery; offenses related to the illicit traffic in controlled substances; serious offenses related to terrorism; serious offenses related to organized criminal activity; fraud against the government or involving multiple victims; counterfeiting of currency; offenses related to the traffic in historical or archeological items; or offenses punishable in both States by deprivation of liberty for a maximum period of at least ten years; or

(c) an attempt or conspiracy to commit, participation in, or association regarding the commission of any of the offenses described in subparagraphs (a) and (b).

2. With respect to offenses not described in paragraphs 1(a), 1(b), or 1(c) of this Article, although the Executive Authority of the Requested State shall have the power to extradite persons of its nationality, it may refuse extradition on the ground that the person sought is a national of the Requested State.

3. If extradition is denied solely on the basis of the nationality of the person sought pursuant to paragraph 2 of this Article, the Requested State shall, at the request of the Requesting State, submit the case to its competent authorities for prosecution.

ARTICLE IV

Bases for Discretionary Denial of Extradition

1. When the offense for which extradition is sought is punishable by death under the laws in the Requesting State, the Executive Authority of the Requested State may refuse extradition unless the Requesting State provides assurances that the person sought will not be executed. In instances in which the Requesting State provides such an assurance, the death penalty, if imposed by the courts of the Requesting State, shall not be carried out.

2. The Requested State may refuse extradition for offenses under military law which are not offenses under ordinary criminal law.

ARTICLE V

Bases for Non-Discretionary Denial of Extradition

1. Extradition shall not be granted if the offense for which extradition is requested is a political offense. The following shall not be considered to be political offenses:

(a) a murder or other willful crime against the person of a Head of State or of a member of the Head of State’s family; or

(b) offenses as to which there is an obligation to establish criminal jurisdiction pursuant to multilateral international treaties in force with respect to the Parties; or

(c) a conspiracy or attempt to commit any of the offenses described in subparagraph (a) or (b), or aiding or abetting a person who commits or attempts to commit such offenses.

2. 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. Extradition shall not be precluded by the fact that the authorities of the Requested State have decided to refrain from prosecuting the person sought for the acts for which extradition is requested or to discontinue any criminal proceedings which have been initiated against the person sought for those acts.

ARTICLE VI

Transmission of Extradition Request and Required Documents

1. All requests for extradition shall be made in writing and submitted with supporting documentation through the diplomatic channel.

2. Requests for extradition shall in all cases be supported by:

(a) The most precise physical description possible of the person sought and any known information regarding the person’s identity, nationality, and probable location;

(b) A description of the facts of the offense and the procedural history of the case;

(c) The text of the laws describing the essential elements of, and punishment for, the offense for which extradition is requested;

(d) The information specified in paragraph (3), (4), (5), or (6) of this Article, as applicable.

3. When the request for extradition relates to a person charged with the commission of an offense, the request shall include the original or a certified copy of the warrant of arrest issued by the competent judicial authority, along with a certified copy of the charging document, and such evidence as, in accordance with the laws in the Requested State, would be necessary to justify the apprehension and commitment for trial of the person sought.

4. Where the Republic of Bolivia is the Requesting State, and the request for extradition relates to a person who has been convicted of the offense for which extradition is sought, the request shall also include a copy of the statement of the judgment of conviction and sentence issued by a competent judicial authority, evidence establishing that the person sought is the person to whom the conviction refers, and a statement setting forth the portion of the sentence not yet served.

5. Where the United States of America is the Requesting State, and the request for extradition relates to a person who has been found guilty of the offense for which extradition is sought, the request shall also include:

(a) a copy of the judgment of conviction, or a statement by a competent judicial authority that the person sought has been found guilty;

(b) evidence establishing that the person sought is the person to whom the finding of guilt refers; and

(c) a copy of the sentence imposed, if the person sought has been sentenced, and a statement setting forth the portion of the sentence not yet served.

6. If the person sought has been convicted in absentia, the request for extradition shall be accompanied by a copy of the judgment of conviction issued by the competent judicial authority, as well as the documents required under paragraph 3 of this Article.

7. If the Requested State requires additional evidence or information to enable it to decide on the request for extradition, such evidence or information shall be submitted to it within such time as that Party shall require.

ARTICLE VII

Certification, Authentication and Translation

1. The documents accompanying the extradition request shall be accepted as evidence if they are certified and authenticated by the principal diplomatic or consular agent of the Requested State in the Requesting State. In addition, in the case of a request from the United States of America, the documents must be certified by the Department of State of the United States of America; in the case of a request from the Republic of Bolivia, the documents must be authenticated by the Ministry of Foreign Affairs and Worship.

2. All documents submitted by the Requesting State shall be accompanied by a translation into the language of the Requested State at the expense of the Requesting State.

ARTICLE VIII

Provisional Arrest

1. In cases of urgency, the Requesting State may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest shall be transmitted through the diplomatic channel, and shall be forwarded to the competent authority for its expeditious execution.

2. The request for provisional arrest shall contain a description and identification of the person sought; a statement of the existence of a warrant of arrest or a finding of guilt or a judgment of conviction issued by a competent judicial authority against the person sought; a description of the law or laws violated sufficient to indicate that the offense is an extraditable offense; a brief statement of the relevant facts of the case, including the date and place of the offense and the whereabouts of the person sought, if known; and a statement that a request for extradition for that person will follow.

3. The Requested State shall notify the Requesting State promptly of the disposition of a request for provisional arrest and the reasons for any denial.

4. An individual who has been provisionally arrested may be released from custody when sixty days have elapsed since the detention and the Requested State has not received the request for extradition and supporting documents as provided in Article VI. Such release shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are received at a later date.

ARTICLE IX

Decision Regarding the Request

1. The Requested State shall notify the Requesting State as soon as possible of its decision regarding the request for extradition.

2. If extradition is denied in whole or in part, the Requested State shall provide a reasoned explanation for its denial and shall submit a copy of the pertinent decision upon request by the Requesting State.

3. If the extradition is granted and surrender is authorized, the Parties shall agree on the date and place for the surrender of the person sought.

4. If the person sought is not removed from the territory of the Requested State within the time prescribed by its laws or regulations (if any), that person may be discharged from custody and the Requested State may subsequently refuse extradition for the same offense.

ARTICLE X

Competing Requests

If the Requested State receives requests from the other Party and from another State or States for the extradition of the same person, either for the same offense or for different offenses, the Requested State shall determine to which Requesting State it will surrender the person as follows:

(1) Where the Republic of Bolivia is the Requested State, the competent judicial authority shall apply the following rules:

(a) If one of the Parties and a third State or States request extradition of the same person in connection with the same offense, preference shall be given to the State in whose territory the offense was committed. If the offense was committed in several States, preference shall be given to the State that first presents an extradition request.

(b) If one of the Parties and a third State or States request extradition for the same person in connection with different offenses, preference shall be given to the State in which the more serious offense was committed, in accordance with the laws in the Requested State. If all the acts alleged are of equal gravity, preference shall be given to the State that first presents an extradition request. If requests are presented simultaneously, the Requested State shall decide.

(2) Where the United States of America is the Requested State, the Executive Authority shall determine to which State it will surrender the person. In making its decision, the Executive Authority shall consider all relevant factors.

ARTICLE XI

Conditional and Deferred Surrender

1. If all the requirements imposed by this Treaty are satisfied and extradition is granted in the case of a person who is being proceeded against or is serving a sentence in the Requested State, that Party may temporarily surrender the person sought to the Requesting State exclusively for the purpose of prosecution. The person so surrendered shall be kept in custody in the Requesting State and shall be returned to the Requested State following the conclusion of the proceedings against that person, in accordance with the conditions to be determined by mutual agreement of the Parties.

2. The Requested State may postpone the surrender of a person who is being prosecuted or who is serving a sentence in that State. The postponement may continue until the prosecution of the person sought has been concluded or until such person has served the sentence, if any.

ARTICLE XII

Rule of Speciality

1. A person extradited under this Treaty shall not be detained, tried, convicted, punished, or otherwise subject to any restriction of his personal liberty in the territory of the Requesting State for an offense committed prior to surrender, except with respect to:

(a) an offense for which extradition was granted;

(b) a different offense that is, nevertheless, constituted by the same facts on which extradition was granted; or

(c) any other offense, provided the Requested State consents, in which case:

(1) the Requested State may require the submission of the documents called for in Article VI; and

(2) the person extradited may be detained by the Requesting State for ninety (90) days, or for such longer period of time as the Requested State may authorize, while the request is being processed.

2. A person extradited under this Treaty may not be extradited to a third State for an offense committed prior to the person’s surrender unless the surrendering Party consents.

3. In no case shall the provisions of paragraphs (1) or (2) of this Article prevent the detention, trial or punishment of the person surrendered, or the extradition of that person to a third State, if:

(a) that person leaves the territory of the Requesting State after extradition and voluntarily returns to it; or

(b) that person does not leave the territory of the Requesting State within thirty (30) days of the day on which that person is free to leave.

ARTICLE XIII

Waiver of Extradition

1. If the person sought consents to surrender to the Requesting State, the Requested State may surrender the person as expeditiously as possible without further proceedings.

2. Such consent shall be directly and expressly provided to the appropriate judicial authority of the Requested State.

ARTICLE XIV

Seizure and Surrender of Property

To the extent permitted under the law in the Requested State, and with due respect to the rights of third parties, any assets, objects of value or documents relating to the offense, whether acquired as a result of the offense or used for its execution, or which in any other manner may be relevant evidence, shall be surrendered to the Requesting State upon the granting of the extradition. Such surrender shall occur even when extradition cannot be effected due to the death or disappearance of the person sought.

ARTICLE XV

Transit

1. Either Party may authorize transit through its territory of a person extradited to the other Party by a third State. The request for transit shall be transmitted through the diplomatic channel and shall contain a description and identification of the person being transported and a brief statement of the facts of the case. A person in transit may be detained in custody during the period of transit.

2. A Party shall respond promptly to a request for transit, unless doing so would compromise that Party’s essential interests.

3. No authorization shall be necessary where air transportation is used and no landing has been scheduled in the territory of a Party. If an unscheduled landing occurs in the territory of a Party, that Party may require a request for transit as provided in paragraph (1) of this Article. That Party shall detain the person being transported until the request is received and the transit is effected, as long as the request is received within ninety-six (96) hours of the unscheduled landing.

ARTICLE XVI

Representation, Consultation, and Expenses

1. The competent authorities of the Requested State shall, by all legal means within their power, advise, assist, and represent the interests of the Requesting State in connection with the processing of extradition cases in the Requested State.

2. The Parties shall, upon request, consult with each other in connection with the processing of extradition cases and in furtherance of maintaining and improving procedures for the implementation of this Treaty.

3. The Requesting State shall bear expenses related to the translation of documents and the transportation of the person sought.

4. Neither Party shall make any pecuniary claim against the other arising from the arrest, detention, custody, examination, or surrender of a person sought under this Treaty.

ARTICLE XVII

Application

The provisions of this Treaty shall apply from the day of its entry into force:

(1) to pending extradition requests for which a final decision has not yet been rendered; and

(2) to extradition requests initiated subsequent to such entry into force even if the crimes committed precede it, provided that on the date of their commission they constituted offenses under the laws in both Parties.

Article XVIII

Final Provisions

(Ratification, Entry into Force, and Termination)

1. This Treaty shall be subject to ratification, and will enter into force upon the exchange of the instruments of ratification. The instruments of ratification shall be exchanged at Washington as soon as possible.

2. Upon the entry into force of this Treaty, the Treaty Between the United States of America and the Republic of Bolivia, signed at La Paz on April 21, 1900, shall become null and void.

3. Either Party may terminate this Treaty when it deems such action appropriate by giving written notice thereof to the other Party. The termination shall be effective six months after the date of such notice.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective governments, have signed this Treaty.

DONE in duplicate, at La Paz, in the English and Spanish languages, both texts being equally authentic, this twenty-seventh day of June, 1995.

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:

FOR THE GOVERNMENT OF THE REPUBLIC OF BOLIVIA:

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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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Bermuda Extradition Treaty with the United States

April 7, 2011

Bermuda International Extradition Treaty with the United States

June 8, 1972, Date-Signed

January 21, 1977, Date-In-Force

(The treaty applicable to the Bermuda was signed with the United Kingdom.)

United Kingdom Of Great Britain And Northern Ireland Extradition Treaty, protocol of signature and exchange of notes were signed at London on June 8, 1972; Ratification advised by the Senate of the United States of America on June 21, 1976; It was Ratified by the President of the United States of America on September 10, 1976; Ratifications were exchanged at Washington on October 21, 1976; It was Proclaimed by the President of the United States of America on November 17, 1976; It Entered into force on January 21, 1977.

With exchange of notes Signed at Washington October 21, 1976.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

CONSIDERING THAT:

The Treaty on Extradition between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, a Protocol of Signature, and an exchange of notes were signed at London on June 8, 1972, the texts of which Treaty and related documents, are hereto annexed;

The Senate of the United States of America by its resolution of June 21, 1976, two-thirds of the Senators present concurring therein, gave its advice and consent to ratification of the Treaty and the related documents;

The Treaty and the related documents were ratified by the President of the United States of America on September 10, 1976, in pursuance of the advice and consent of the Senate, and were duly ratified on the part of the United Kingdom of Great Britain and Northern Ireland;

It is provided in Article XVI of the Treaty that the Treaty shall enter into force three months after the date of the exchange of instruments of ratification;

The instruments of ratification of the Treaty were exchanged at Washington on October 21, 1976; and accordingly the Treaty and the related documents enter into force on January 21, 1977;

NOW, THEREFORE, I, Gerald R. Ford, President of the United States of America, proclaim and make public the Treaty, Protocol of Signature, and the exchange of notes, to the end that they shall be observed and fulfilled with good faith on and after January 21, 1977, by the United States of America and by the citizens of the United States of America and all other persons subject to the jurisdiction thereof.

IN TESTIMONY WHEREOF, I have signed this proclamation and caused the Seal of the United States of America to be affixed.

DONE at the city of Washington this seventeenth day of November in the year of our Lord one thousand nine hundred seventy-six and of the Independence of the United States of America the two hundred first.

GERALD R. FORD

By the President:

HENRY A. KISSINGER

Secretary of State

EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

The Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland;

Desiring to make provision for the reciprocal extradition of offenders;

Have agreed as follows:

ARTICLE I

Each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in this Treaty, any person found in its territory who has been accused or convicted of any offense within Article III, committed within the jurisdiction of the other Party.

ARTICLE II

(1) This Treaty shall apply:

(a) in relation to the United Kingdom: to Great Britain and Northern Ireland, the Channel Islands, the Isle of Man, and any territory for the international relations of which the United Kingdom is responsible and to which the Treaty shall have been extended by agreement between the Contracting Parties embodied in an Exchange of Notes; and

(b) to the United States of America;

and references to the territory of a Contracting Party shall be construed accordingly.

(2) The application of this Treaty to any territory in respect of which extension has been made in accordance with paragraph (1) of this Article may be terminated by either Contracting Party giving six months’ written notice to the other through the diplomatic channel.

ARTICLE III

(1) Extradition shall be granted for an act or omission the facts of which disclose an offense within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty, or any other offense, if:

(a) the offense is punishable under the laws of both Parties by imprisonment or other form of detention for more than one year or by the death penalty;

(b) the offense is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of sub-paragraph (1) (a) of Article II; and

(c) the offense constitutes a felony under the law of the United States of America.

(2) Extradition shall also be granted for any attempt or conspiracy to commit an offense within paragraph (1) of this Article if such attempt or conspiracy is one for which extradition may be granted under the laws of both Parties and is punishable under the laws of both Parties by imprisonment or other form of detention for more than one year or by the death penalty.

(3) Extradition shall also be granted for the offense of impeding the arrest or prosecution of a person who has committed an offense for which extradition may be granted under this Article and which is punishable under the laws of both Parties by imprisonment or other form of detention for a period of five years or more.

(4) A person convicted of and sentenced for an offense shall not be extradited therefor unless he was sentenced to imprisonment or other form of detention for a period of four months or more or, subject to the provisions of Article IV, to the death penalty.

ARTICLE IV

If the offense for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out.

ARTICLE V

(1) Extradition shall not be granted if:

(a) the person sought would, if proceeded against in the territory of the requested Party for the offense for which his extradition is requested, be entitled to be discharged on the grounds of a previous acquittal or conviction in the territory of the requesting or requested Party or of a third State; or

(b) the prosecution for the offense for which extradition is requested has become barred by lapse of time according to the law of the requesting or requested Party; or

(c) (i) the offense for which extradition is requested is regarded by the requested Party as one of a political character; or

(ii) the person sought proves that the request for his extradition has in fact been made with a view to try or punish him for an offense of a political character.

(2) Extradition may be refused on any other ground which is specified by the law of the requested Party.

ARTICLE VI

If the person sought should be under examination or under punishment in the territory of the requested Party for any other offense, his extradition shall be deferred until the conclusion of the trial and the full execution of any punishment awarded to him.

ARTICLE VII

(1) The request for extradition shall be made through the diplomatic channel, except as otherwise provided in Article XV.

(2) The request shall be accompanied by:

(a) a description of the person sought, his nationality, if known, and any other information which would help to establish his identity;

(b) a statement of the facts of the offense for which extradition is requested;

(c) the text, if any, of the law

(i) defining that offense;

(ii) prescribing the maximum punishment for that offense; and

(iii) imposing any time limit on the institution of proceedings for that offense; and

(d) (i) where the requesting Party is the United Kingdom, a statement of the legal provisions which establish the extraditable character of the offense for which extradition is requested under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of sub-paragraph (1) (a) of Article II;

(ii) where the requesting Party is the United States of America, a statement that the offense for which extradition is requested, constitutes a felony under the law of the United States of America.

(3) If the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the requesting Party and by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offense had been committed in the territory of the requested Party, including evidence that the person requested is the person to whom the warrant of arrest refers.

(4) If the request relates to a convicted person, it must be accompanied by a certificate or the judgment of conviction imposed in the territory of the requesting Party and by evidence that the person requested is the person to whom the conviction refers and, if the person was sentenced, by evidence of the sentence imposed and a statement showing to what extent the sentence has not been carried out.

(5) The warrant of arrest, or the judicial document establishing the existence of the conviction, and any deposition or statement or other evidence given on oath or affirmed, or any certified copy thereof shall be received in evidence in any proceedings for extradition:

(a) if it is authenticated in the case of a warrant by being signed, or in the case of any other original document by being certified, by a judge, magistrate or other competent authority of the requesting Party, or in the case of a copy by being so certified to be a true copy of the original; and

(b) where the requesting Party is the United Kingdom, by being sealed with the official seal of the appropriate Minister and certified by the principal diplomatic or consular officer of the United States of America in the United Kingdom; and where the requesting Party is the United States of America, by being sealed with the official seal of the Department of State for the Secretary of State; or

(c) if it is authenticated in such other manner as may be permitted by the law of the requested Party.

ARTICLE VIII

(1) In urgent cases the person sought may, in accordance with the law of the requested Party, be provisionally arrested on application through the diplomatic channel by the competent authorities of the requesting Party. The application shall contain an indication of intention to request the extradition of the person sought and a statement of the existence of a warrant of arrest or a conviction against that person, and, if available, a description of the person sought, and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offense been committed, or the person sought been convicted, in the territory of the requested Party.

(2) A person arrested upon such an application shall be set at liberty upon the expiration of forty-five days from the date of his arrest if a request for his extradition shall not have been received. This provision shall not prevent the institution of further proceedings for the extradition of the person sought if a request is subsequently received.

ARTICLE IX

(1) Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party either to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party or to prove that he is the identical person convicted by the courts of the requesting Party.

(2) If the requested Party requires additional evidence or information to enable a decision to be taken on the request for extradition, such evidence or information shall be submitted within such time as that Party shall require.

ARTICLE X

If the extradition of a person is requested concurrently by one of the Contracting Parties and by another State or States, either for the same offense or for different offenses, the requested Party shall make its decision in so far as its law allows, having regard to all the circumstances, including the provisions in this regard in any Agreements in force between the requested Party and the requesting States, the relative seriousness and place of commission of the offenses, the respective dates of the requests, the nationality of the person sought and the possibility of subsequent extradition to another State.

ARTICLE XI

(1) The requested Party shall promptly communicate to the requesting Party through the diplomatic channel the decision on the request for extradition.

(2) If a warrant or order for the extradition of a person sought has been issued by the competent authority and he is not removed from the territory of the requested Party within such time as may be required under the law of that Party, he may be set at liberty and the requested Party may subsequently refuse to extradite him for the same offense.

ARTICLE XII

(1) A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that Party to a third State-

(a) until after he has returned to the territory of the requested Party; or

(b) until the expiration of thirty days after he has been free to return to the territory of the requested Party.

(2) The provisions of paragraph (1) of this Article shall not apply to offenses committed, or matters arising, after the extradition.

ARTICLE XIII

When a request for extradition is granted, the requested Party shall, so far as its law allows and subject to such conditions as it may impose having regard to the rights of other claimants, furnish the requesting Party with all sums of money and other articles-

(a) which may serve as proof of the offense to which the request relates; or

(b) which may have been acquired by the person sought as a result of the offense and are in his possession.

ARTICLE XIV

(1) The requested Party shall make all necessary arrangements for and meet the cost of the representation of the requesting Party in any proceedings arising out of a request for extradition.

(2) Expenses relating to the transportation of a person sought shall be paid by the requesting Party. No pecuniary claim arising out of the arrest, detention, examination and surrender of a person sought under the provisions of this Treaty shall be made by the requested Party against the requesting Party.

ARTICLE XV

A request on the part of the Government of the United States of America for the extradition of an offender who is found in any of the territories to which this Treaty has been extended in accordance with paragraph (1) of Article II may be made to the Governor or other competent authority of that territory, who may take the decision himself or refer the matter to the Government of the United Kingdom for their decision.

ARTICLE XVI

(1) This Treaty shall be ratified, and the instruments of ratification shall be exchanged at Washington as soon as possible. It shall come into force three months after the date of the exchange of instruments of ratification.

(2) This Treaty shall apply to any offense listed in the annexed Schedule committed before or after this Treaty enters into force, provided that extradition shall not be granted for an offense committed before this Treaty enters into force which was not an offense under the laws of both Contracting Parties at the time of its commission.

(3) On the entry into force of this Treaty the provisions of the Extradition Treaty of December 22, 1931 shall cease to have effect as between the United Kingdom and the United States of America.

(4) Either of the Contracting Parties may terminate this Treaty at any time by giving notice to the other through the diplomatic channel. In that event the Treaty shall cease to have effect six months after the receipt of the notice.

In witness whereof the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty.

Done in duplicate at London in the English language this 8th day of June, 1972.

Signatories

W. H. Annenberg

Anthony Kershaw

List of offenses referred to in Article III

1. Murder; attempt to murder, including assault with intent to murder.

2. Manslaughter.

3. Maliciously wounding or inflicting grievous bodily harm.

4. Unlawful throwing or application of any corrosive or injurious substance upon the person of another.

5. Rape; unlawful sexual intercourse with a female; indecent assault.

6. Gross indecency or unlawful sexual acts with a child under the age of fourteen years.

7. Procuring a woman or young person for immoral purposes; living on the earnings of prostitution.

8. Unlawfully administering drugs or using instruments with intent to procure the miscarriage of a woman.

9. Bigamy.

10. Kidnapping, abduction, false imprisonment.

11. Neglecting, ill-treating, abandoning, exposing or stealing a child.

12. An offense against the law relating to narcotic drugs, cannabis sativa L, hallucinogenic drugs, cocaine and its derivatives, and other dangerous drugs.

13. Theft; larceny; embezzlement.

14. Robbery; assault with intent to rob.

15. Burglary or housebreaking or shopbreaking.

16. Receiving or otherwise handling any goods, money, valuable securities or other property, knowing the same to have been stolen or unlawfully obtained.

17. Obtaining property, money or valuable securities by false pretenses or other form of deception.

18. Blackmail or extortion.

19. False accounting.

20. Fraud or false statements by company directors and other officers.

21. An offense against the bankruptcy laws.

22. An offense relating to counterfeiting or forgery.

23. Bribery, including soliciting, offering or accepting bribes.

24. Perjury; subornation of perjury.

25. Arson.

26. Malicious damage to property.

27. Any malicious act done with intent to endanger the safety of persons travelling or being upon a railway.

28. Piracy, involving ships or aircraft, according to international law.

29. Unlawful seizure of an aircraft.

PROTOCOL OF SIGNATURE

At the time of signing this day the Extradition Treaty between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland (hereinafter referred to as “the Treaty”), the undersigned have agreed as follows:

(1) Article III of the Treaty shall permit the Government of the United States of America to obtain the extradition of a person for an offense to which the Treaty relates when United States Federal jurisdiction is based upon interstate transport or transportation or the use of the mails or of interstate facilities, these aspects being jurisdictional only.

(2) This Protocol of Signature shall form an integral part of the Treaty.

In witness whereof the undersigned, being duly authorized thereto by their respective Governments, have signed this Protocol.

Done in duplicate at London in the English language this 8th day of June, 1972.

8 JUNE 1972

His Excellency

The Honourable

WALTER H ANNENBERG

YOUR EXCELLENCY

I have the honour to refer to Article 16, paragraph (2), of the Extradition Treaty between our two Governments signed today.

It is the understanding of the Government of the United Kingdom that, without prior concurrence by both Governments, no application will be made for the extradition of a person for an offence committed before the Treaty signed today enters into force if extradition of such person for that offence, or any other offence, has previously been denied because the offence was not included in the Extradition Treaty between the United Kingdom and the United States, signed at London on 22 December, 1931.

I would appreciate receiving confirmation that the foregoing is also the understanding of the Government of the United States.

I have the honour to be with the highest consideration

R. V. RICHARDSON

EMBASSY OF THE UNITED STATES OF AMERICA LONDON

JUNE 8, 1972

EXCELLENCY:

I have the honor to acknowledge receipt of your note of June 8, 1972 which reads as follows:

“I have the honour to refer to Article 16, paragraph (2), of the Extradition Treaty between our two Governments signed today.

“It is the understanding of the Government of the United Kingdom that, without prior concurrence by both Governments, no application will be made for the extradition of a person for an offence committed before the Treaty signed today enters into force if extradition of such person for that offence, or any other offence, has previously been denied because the offence was not included in the Extradition Treaty between the United Kingdom and the United States, signed at London on 22 December, 1931.

“I would appreciate receiving confirmation that the foregoing is also the understanding of the Government of the United States.”

I confirm that the foregoing is also the understanding of the Government of the United States.

Accept, Excellency, the renewed assurances of my highest consideration.

WALTER ANNENBERG

THE SECRETARY OF STATE FOR FOREIGN & COMMONWEALTH

AFFAIRS FOREIGN OFFICE London, S.W.1.

BRITISH EMBASSY, Washington, D.C.

21 OCTOBER 1976

SIR

I have the honour to refer to the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America signed at London on 8 June 1972. In accordance with the provisions of paragraph (1) (a) of Article II I have the honour to propose that, with effect from the date of entry into force of the Treaty, the application of the Treaty shall extend to those territories listed in the Annex to this Note for the international relations of which the United Kingdom is responsible.

If the foregoing proposal is acceptable to the Government of the United States of America, I have the honour to propose that this Note, together with its Annex and Your Excellency’s reply in that sense, shall constitute an Agreement between the two Governments in this matter.

I avail myself of this opportunity to renew to you, Sir, the assurance of my highest consideration.

PETER RAMSBOTHAM

HENRY A KISSINGER

Secretary of State of the United States of America Washington DC

ANNEX

Antigua
Belize
Bermuda
British Indian Ocean Territory
British Virgin Islands
Cayman Islands
Dominica
Falkland Islands and Dependencies
Gibraltar
Gilbert Islands
Hong Kong
Montserrat
Pitcairn, Henderson, Ducie and Oeno Islands
St Christopher, Nevis and Anguilla
St Helena and Dependencies
St Lucia
St Vincent
Solomon Islands
Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus
Turks and Caicos Islands
Tuvalu

DEPARTMENT OF STATE WASHINGTON

OCTOBER 21, 1976

EXCELLENCY:

I have the honor to acknowledge receipt of your note of October 21, 1976, which reads as follows:

“Sir

I have the honour to refer to the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America signed at London on 8 June 1972. In accordance with the provisions of paragraph (1) (a) of Article II I have the honour to propose that, with effect from the date of entry into force of the Treaty, the application of the Treaty shall extend to those territories listed in the Annex to this Note for the international relations of which the United Kingdom is responsible.

If the foregoing proposal is acceptable to the Government of the United States of America, I have the honour to propose that this Note, together with its Annex and Your Excellency’s reply in that sense, shall constitute an Agreement between the two Governments in this matter.

I avail myself of this opportunity to renew to you, Sir, the assurance of my highest consideration.

ANNEX

Antigua
Belize
Bermuda
British Indian Ocean Territory
British Virgin Islands
Cayman Islands
Dominica
Falkland Islands and Dependencies
Gibraltar
Gilbert Islands
Hong Kong
Montserrat
Pitcairn, Henderson, Ducie and Oeno Islands
St Christopher, Nevis and Anguilla
St Helena and Dependencies
St Lucia
St Vincent
Solomon Islands
Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus
Turks and Caicos Islands
Tuvalu”

I have the honor to inform Your Excellency that the foregoing is acceptable and reflects correctly the understanding of the Government of the United States of America, and that Your Excellency’s note and this note in reply concurring therein, together with its Annex, constitute an agreement between our two Governments concerning the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America signed at London on 8 June 1972.

Accept, Excellency, the renewed assurances of my highest consideration.

CHARLES W ROBINSON

SIR PETER E. RAMSBOTHAM, G.C.V.O., K.C.M.G.,

British Ambassador

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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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Belize Extradition Treaty with the United States

April 6, 2011

Belize International Extradition Treaty with the United States

March 30, 2000, Date-Signed

March 27, 2001, Date-In-Force

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

106TH CONGRESS

2d Session

SENATE

LETTER OF TRANSMITTAL

THE WHITE HOUSE, July 27, 2000.

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 Government of the United States of America and the Government of Belize, signed at Belize on March 30, 2000.

In addition, I transmit, for the information of the Senate, the report of the Department of State with respect to the Treaty. As the report explains, the Treaty will not require implementing legislation.

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States.

The Treaty is one of a series of modern extradition treaties being negotiated by the United States in order to counter criminal activities more effectively. Upon entry into force, the Treaty will replace the outdated Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America, signed at London, June 8, 1972, entered into force on October 21, 1976, and made applicable to Belize on January 21 1977. That treaty continued in force for Belize following independence. This Treaty will, upon entry into force, enhance cooperation between the law enforcement communities of the two countries. It will thereby make a significant contribution to international law enforcement efforts against serious offenses, including terrorism, organized crime, and drug-trafficking offenses.

I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.

WILLIAM J. CLINTON.

LETTER OF SUBMITTAL

DEPARTMENT OF STATE,

Washington, July 5, 2000.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Extradition Treaty Between the Government of the United States of America and the Government of Belize, signed at Belize on March 30, 2000. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification.

The Treaty follows generally the form and content of extradition treaties recently concluded by the United States. The Treaty will, upon entry into force, enhance cooperation between the law enforcement communities of the United States and Belize in areas of particular concern to the U.S. law enforcement community. The Treaty will replace the Extradition Treaty between the United States of America and the United Kingdom of Great Britain and Northern Ireland, signed at London, June 8, 1972, entered into force October 21, 1976 and made applicable to Belize on January 21, 1977. This treaty continued in force for Belize following independence. The current treaty has become outmoded and the new Treaty will provide significant improvements. For example, it will establish the coverage of such key offenses as operating a continuing criminal enterprise, racketeering, money laundering and firearms offenses. The new Treaty will not require any implementing legislation.

Article 1 obligates the Parties to extradite to each other, pursuant to the provisions of the Treaty, persons sought for prosecution or convicted of an extraditable offense by Requesting State authorities.

Article 2 concerns extraditable offenses. Article 2(1) defines an extraditable offense as one that falls within any of the descriptions listed in the Schedule annexed to the Treaty, or any other offense, provided that in either case the offense 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. The Schedule includes 40 of the most common extraditable offenses. Use of a “dual criminality” clause in addition to a list of offenses covered by the Treaty obviates the need to renegotiate or supplement the Treaty as additional offenses become punishable under the law of both States.

Article 2(2) defines an extraditable offense further as including an attempt or a conspiracy to commit, aiding or abetting, counseling or procuring the commission of, or being an accessory before or after the fact to, an extraditable offense.

Additional flexibility is provided by Article 2(3), which provides that an offense shall be an extraditable offense whether or not (a) the laws in the two States place the offense within the same category of offenses or describe the offense by the same terminology; or (b) 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 merely for the purpose of establishing jurisdiction in a United States federal court.

With regard to offenses committed outside the territory of the Requesting State, Article 2(4) provides that extradition must be granted where the laws in the Requested State provide for the punishment of an offense committed outside its territory in similar circumstances.

Article 2(5) provides that if extradition is granted for an extraditable offense, it shall also be granted for other offenses specified in the request that do not meet the minimum deprivation of liberty requirement, provided that all other extradition requirements are met.

Article 3 provides that extradition shall not be refused on the ground of the nationality of the person sought. Although Belize as a common-law country has no domestic legal bar to extraditing its nationals, until 5 years ago it refused to do so. Article 3 would assure that Belize could not revert to this prior practice.

As is customary in extradition treaties, Article 4 incorporates a political and military offense exception to the obligation to extradite. Article 4(1) states generally that extradition shall not be granted for political offenses. Article 4(2) specifies three specific categories of offenses that shall not be considered political offenses: (a) a murder or other willful crime against a Head of State of one of the States parties, or a member of such person’s family; (b) an offense for which both States have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their respective competent authorities for decision as to prosecution (e.g., the Convention for the Suppression of Unlawful Seizures of Aircraft, done at the Hague on December 16, 1970, 22 UST 1641, TIAS 7192); and (c) a conspiracy or attempt to commit any of the foregoing offenses, or aiding or abetting a person who commits or attempts to commit such offenses.

Article 4(3) further provides that notwithstanding the three exceptions in Article 4(2), 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 extradition may be denied for offenses under military law that are not offenses under ordinary criminal law (for example, desertion).

Article 5 bars extradition when the person sought has been convicted or acquitted in the Requested State for the same offense, but does not bar extradition if the authorities in the Requested State have either declined to prosecute or have decided to discontinue criminal proceedings against the person sought for the same offense for which extradition is requested.

Article 6 establishes the procedures and describes the documents that are required to support a request for extradition. It requires that all requests be submitted through the diplomatic channel. Article 6(3) provides that, among other things, a request for the extradition of a person sought for prosecution must be supported by such evidence as would be found sufficient, according to the law of the Requested State, to justify committal for trial if the offense of which the person has been accused had been committed in the Requested State.

Article 7 establishes the procedures under which documents submitted pursuant to Article 6 shall be received and admitted into evidence in each State when it is the Requested State. These provisions are similar to those found in other modern extradition treaties.

Article 8 provides that extradition shall not be denied because of the prescriptive laws (e.g., statute of limitations) of either State.

Article 9 sets forth procedures for the provisional arrest and detention of the person sought in cases of urgency, pending presentation of the formal request for extradition. Article 9(4) provides that, if the Requested State’s executive authority has not received the formal request for extradition and the supporting documents required by Article 6 within sixty days from the date of provisional arrest, the person may be discharged from custody. During that time the person arrested must have access to the courts for such remedies and recourses available under the Requested State’s laws. Article 9(5) explicitly provides that the release of a person from custody pursuant to Article 9(4) does not prejudice subsequent rearrest and extradition if the extradition request and supporting documents are delivered at a later date.

Article 10 specifies the standard procedures governing the extradition decision and the surrender and return of persons sought. Article 10(1) provides that extradition shall be granted only if the evidence is sufficient under the law of the Requested State either to justify the committal for trial of the person sought if the offense had been committed in the Requested State or to prove that the person is the identical person convicted by the Requesting State. Article 10 further requires the Requested State to provide prompt notice through the diplomatic channel to the Requesting State of its decision on the request for extradition and to provide reasons for any complete or partial denial of a request. If extradition is granted, the relevant authorities of the States must agree on the date and place for the surrender of the person sought. Article 10(5) provides that 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; the Requested State, in its discretion, may subsequently refuse extradition for the same offense.

Article 11 concerns temporary and deferred surrender. If a person whose extradition has been granted 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 prosecution. The person so surrendered must be kept in custody in the Requesting State and returned to the Requested State after the conclusion of the proceedings against that person, on conditions agreed between the States. Alternatively, the Requested State may postpone the extradition proceedings until its prosecution has been concluded or the sentence has been served.

Article 12 again reflects the U.S. practice in modern extradition treaties, setting forth a non-exclusive list of factors to be considered by the Requested State in determining to which State to surrender a person sought by more than one State.

Article 13 provides that if extradition is granted, the Requested State may, to the extent permitted under its law, seize and surrender to the Requesting State all articles, documents, and evidence connected with the offense. Such items may be surrendered even if the extradition cannot be carried out due to the death, disappearance, or escape of the person sought. Surrender of the property may be conditioned upon satisfactory assurances concerning its return, or may be deferred if the property is needed as evidence in the Requested State. Article 13(3) provides that any rights of third parties in such property must be duly respected.

Article 14 sets forth the rule of specialty. It provides, subject to specific exceptions, that a person extradited under the Treaty may not be detained, tried or punished in the Requesting State for an offense other than that for which extradition has been granted or a differently denominated offense based on the same facts on which extradition was granted (provided such offense is extraditable or is a lesser included offense). Exceptions to the rule of specialty include an offense committed after the extradition of the person or an offense for which a waiver of the rule of specialty is granted by the executive authority of the Requested State. Similarly, the Requesting State may not extradite the person to a third state for an offense committed prior to the original surrender unless the surrendering State consents. These restrictions do not apply if the person has left and voluntarily returned to the territory of the Requesting State or if the person has had an opportunity to leave the territory of the Requesting State after extradition and has not done so within ten days.

Article 15 permits surrender by the Requested State without further proceedings if the person sought consents to be surrendered.

Article 16 governs the transit through the territory of one State of a person being surrendered to the other State by a third State.

Article 17 contains provisions on representation and expenses that are similar to those found in other modern extradition treaties. Specifically, the Requested State must bear the expenses incurred and represent the interests of the Requesting State in any proceedings arising out of a request for extradition. The Requesting State must pay all expenses incurred in translation of extradition documents and the transportation of the person surrendered.

Article 17(3) clarifies that neither State can make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought under the Treaty.

Article 18 provides that the Department of Justice of the United States and the Attorney General of Belize may consult with each other directly in connection with the processing of individual cases and in furtherance of maintaining and improving procedures for the implementation of the Treaty.

Article 19, like similar provisions in most recent U.S. extradition treaties, states that the Treaty is applicable to offenses committed before as well as after the date the Treaty enters into force, provided that extradition shall not be granted for an offense committed before the Treaty enters into force which was not an offense under the laws of both States at the time of its commission. The Article also provides that nothing in the Treaty can be construed to criminalize any conduct not subject to criminal sanctions at the time it occurred.

Article 20 contains final clauses dealing with the Treaty’s ratification and entry into force. It provides that the Treaty is subject to ratification and that the Treaty shall enter into force upon the exchange of instruments of ratification, which is to take place as soon as possible. Article 20(3) provides that, upon entry into force of this Treaty, the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America, signed at London June 8, 1972, shall cease to have any effect between the United States and Belize. Nevertheless, the Article notes that the Treaty shall continue to apply to any extradition proceedings in which extradition documents have already been submitted to the courts of the Requested State at the time the Treaty enters into force, except that Article 14, addressing the rule of specialty, and Article 15, providing for voluntary surrender, shall apply to persons found extraditable under the prior treaty.

Article 21 provides that either State may terminate the Treaty by giving six months written notice to the other State.

A Technical Analysis explaining in detail the provisions of the Treaty is being prepared by the United States negotiating delegation, consisting of representatives from the Departments of Justice and State, and will be transmitted separately to the Senate Committee on Foreign Relations.

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

Respectfully submitted,

MADELEINE ALBRIGHT.

EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF BELIZE

The Government of the United States of America and the Government of Belize,

Recalling the Extradition Treaty between the United States of America and the United Kingdom of Great Britain and Northern Ireland, signed at London June 8, 1972, and

Noting that both the Government of the United States of America and the Government Belize currently apply the terms of that Treaty, and

Desiring to provide for more effective cooperation between the two States in the suppression of crime, and, for that purpose, to conclude a new treaty for the extradition of offenders;

Have agreed as follows:

Article 1

Obligation to Extradite

The Contracting States agree to extradite to each other, pursuant to the provisions of this Treaty, persons sought for prosecution or convicted of an extraditable offense by the authorities in the Requesting State.

Article 2

Extraditable Offenses

1. An offense shall be an extraditable offense if it falls within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty, or any other offense, provided that in either case the offense is punishable under the laws in both Contracting States by deprivation of liberty for a period of more than one year or by a more severe penalty.

2. An offense shall also be an extraditable offense if it consists of an attempt or a conspiracy to commit, aiding or abetting, counseling or procuring the commission of, or being an accessory before or after the fact to, any offense described in paragraph 1.

3. For the purposes of this Article, an offense shall be an extraditable offense: (a) whether or not the laws in the Contracting States place the offense within the same category of offenses or describe the offense by the same terminology; or

(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 merely for the purpose of establishing jurisdiction in a United States federal court.

4. If the offense was committed outside of the territory of the Requesting State, extradition shall be granted in accordance with this treaty if the laws in the Requested State provide for punishment of an offense committed outside of its territory in similar circumstances.

5. If extradition has been 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 one year’s deprivation of liberty or less, provided that all other requirements for extradition are met.

Article 3

Nationality

Extradition shall not be refused on the ground that the person sought is a national of the Requested State.

Article 4

Political and Military Offenses

1. Extradition shall not be granted if the offense for which extradition is requested is a political offense.

2. For the purposes of this Treaty, the following offenses shall not be considered to be political offenses:

(a) a murder or other willful crime against the person of a Head of State of one of the Contracting States, or of a member of the Head of State’s family;

(b) an offense for which both Contracting States 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; and

(c) a conspiracy or attempt to commit any of the foregoing offenses, or aiding or abetting a person who commits or attempts to commit such offenses.

3. Notwithstanding the terms of paragraph 2 of this Article, extradition shall not be granted if the executive authority of the Requested State determines that the request was politically motivated.

4. The executive authority of the Requested State may refuse extradition for offenses under military law which are not offenses under ordinary criminal law.

Article 5

Prior Prosecution

1. 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.

2. Extradition shall not be precluded by the fact that the authorities in the Requested State have decided not to prosecute the person sought for the acts for which extradition is requested, or to discontinue any criminal proceedings which have been instituted against the person sought for those acts.

Article 6

Extradition Procedures and Required Documents

1. All requests for extradition shall be submitted through the diplomatic channel.

2. All requests shall be supported by:

(a) documents, statements, or other types of evidence which describe the identity, and probable location of the person sought;

(b) evidence describing the facts of the offense and the procedural history of the case;

(c) evidence as to:

(i) the provisions of the laws describing the essential elements of the offense for which extradition is requested;

(ii) the provisions of the law describing the punishment for the offense; and

(iii) the provisions of law describing any time limit on the prosecution; and

(d) the documents, statements, or other types of evidence specified in paragraph 3 or paragraph 4 of this Article, as applicable.

3. A request for extradition of a person who is sought for prosecution shall also be supported by:

(a) a copy of the warrant or order of arrest, if any, issued by a judge or other competent authority of the Requesting State;

(b) a document setting forth the charges; and

(c) such evidence as would be found sufficient, according to the law of the Requested State, to justify the committal for trial of the person sought if the offense of which the person has been accused had been committed in the Requested State.

4. A request for extradition relating to a person who has been convicted of the offense for which extradition is sought shall, in addition to the materials listed in paragraph 2 of this Article, be supported by:

(a) a copy of the judgment of conviction or, if such copy is not available, a statement by a judicial authority that the person has been convicted;

(b) evidence establishing that the person sought is the person to whom the conviction refers;

(c) a copy of the sentence imposed, if the person sought has been sentenced, and a statement establishing to what extent the sentence has been carried out; and

(d) in the case of a person who has been convicted in absentia, the documents required by paragraph 3 of this Article.

Article 7

Admissibility of Documents

The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if:

(a) in the case of a request from the United States, they are authenticated by an officer of the United States Department of State and are certified by the principal diplomatic or consular officer of Belize resident in the United States;

(b) in the case of a request from Belize, they are certified by the principal diplomatic or consular officer of the United States resident in Belize, as provided by the extradition laws of the United States; or

(c) they are certified or authenticated in any other manner accepted by the law of the Requested State.

Article 8

Lapse of Time

Extradition shall not be denied because of the prescriptive laws of either the Requesting State or the Requested State.

Article 9

Provisional Arrest

1. In case of urgency, a Contracting State may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the United States Department of Justice and the Attorney General in Belize. Such a request may also be transmitted through the facilities of the International Criminal Police Organization (INTERPOL), or through such other means as may be settled by arrangement between the Contracting States.

2. The application for provisional arrest shall contain:

(a) a description of the person sought;

(b) the location of the person sought, if known;

(c) a brief statement of the facts of the case, including, if possible, the time and location of the offense;

(d) a description of the laws violated;

(e) a statement of the existence of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought; and

(f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of provisional arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 6. The person arrested pursuant to this Article shall have the right of access to the courts for such remedies and recourses as are provided by the law of the Requested State.

5. The fact that the person sought has been discharged from custody pursuant to paragraph 4 of this Article shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are delivered at a later date.

Article 10

Decision and Surrender

1. Extradition shall be granted only if the evidence is found sufficient according to the law of the Requested State either to justify the committal for trial of the person sought if the offense of which the person is accused had been committed in the territory of the Requested State or to prove that the person is the identical person convicted by the courts of the Requesting State.

2. The Requested State shall promptly notify the Requesting State through the diplomatic channel of its decision on the request for extradition.

3. If the request is denied in whole or in part, the Requested State shall provide an explanation of the reasons for the denial. The Requested State shall provide copies of pertinent judicial decisions upon request.

4. If the request for extradition is granted, the authorities of the Contracting States shall agree on the time and place for the surrender of the person sought.

5. If the person sought is not removed from the territory of the Requested State within the time prescribed by the law of that State, that person may be discharged from custody, and the Requested State may subsequently refuse extradition for the same offense.

Article 11

Temporary and Deferred Surrender

1. If the extradition request is granted in the case of a person who is being proceeded against or is serving a sentence in the Requested State, the Requested State may temporarily surrender the person sought to the Requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody in the Requesting State and shall be returned 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 Contracting States.

2. The Requested State may postpone the extradition proceedings against a person who is being prosecuted or who is serving a sentence in that State. The postponement may continue until the prosecution of the person sought has been concluded or until such person has served any sentence imposed.

Article 12

Requests for Extradition Made by Several States

If the Requested State receives requests from the other Contracting State and from any other State or States for the extradition of the same person, either for the same offense or for different offenses, the executive authority of the Requested State shall determine to which State it will surrender the person. In making its decision, the Requested State shall consider all relevant factors, including but not limited to:

(a) whether the requests were made pursuant to treaty;

(b) the place where each offense was committed;

(c) the respective interests of the Requesting States;

(d) the gravity of the offenses;

(e) the nationality of the victim;

(f) the possibility of further extradition between the Requesting States; and

(g) the chronological order in which the requests were received from the Requesting States.

Article 13

Seizure and Surrender of Property

1. To the extent permitted under its law, the Requested State may seize and surrender to the Requesting State all articles, documents, and evidence connected with the offense in respect of which extradition is granted. The items mentioned in this Article may be surrendered even when the extradition cannot be effected due to the death, disappearance, or escape of the person sought.

2. The Requested State may condition the surrender of the property 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 property if it is needed as evidence in the Requested State.

3. The rights of third parties in such property shall be duly respected.

Article 14

Rule of Speciality

1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:

(a) the offense for which extradition has been granted or a differently denominated offense based on the same facts on which extradition was granted, provided such offense is extraditable, or is a lesser included offense;

(b) an offense committed after the extradition of the person; or

(c) an offense for which the executive authority of the Requested State consents to the person’s detention, trial, or punishment. For the purpose of this subparagraph:

(i) the Requested State may require the submission of the documents called for in Article 6; and

(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request is being processed.

2. A person extradited under this Treaty may not be extradited to a third State for an offense committed prior to his surrender unless the surrendering State consents.

3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of that person to a third State, if:

(a) that person leaves the territory of the Requesting State after extradition and voluntarily returns to it; or

(b) that person does not leave the territory of the Requesting State within 10 days of the day on which that person is free to leave.

Article 15

Waiver of Extradition

If the person sought consents to surrender to the Requesting State, the Requested State may surrender the person as expeditiously as possible without further proceedings.

Article 16

Transit

1. Either Contracting State may authorize transportation through its territory of a person surrendered to the other State by a third State. A request for transit shall be transmitted through the diplomatic channel or directly between the Department of Justice in the United States and the Attorney General in Belize. Such a request may also be transmitted through the facilities of the International Criminal Police Organization (INTERPOL), or through such other means as may be settled by arrangement between the Contracting States. It shall contain a description of the person being transported and a brief statement of the facts of the case. A person in transit may be detained in custody during the period of transit.

2. No authorization is required where air transportation is used and no landing is scheduled on the territory of the Contracting State. If an unscheduled landing occurs on the territory of the other Contracting State, the other Contracting State may require the request for transit as provided in paragraph 1. That Contracting State may detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.

Article 17

Representation and Expenses

1. The Requested State shall advise, assist, appear in court on behalf of the Requesting State, and represent the interests of the Requesting State, in any proceedings arising out of a request for extradition.

2. The Requesting State shall bear the expenses related to the translation of documents and the transportation of the person surrendered. The Requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings.

3. Neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought under this Treaty.

Article 18

Consultation

The Department of Justice of the United States and the Attorney General of Belize may consult with each other directly in connection with the processing of individual cases and in furtherance of maintaining and improving procedures for the implementation of this Treaty.

Article 19

Application

This Treaty shall apply to offenses committed before as well as after the date it enters into force, provided that extradition shall not be granted for an offense committed before this Treaty enters into force which was not an offense under the laws of both Contracting States at the time of its commission. Nothing in this Treaty shall be construed to criminalize any conduct that was not subject to criminal sanctions at the time the offense was committed.

Article 20

Ratification and Entry into Force

1. This Treaty shall be subject to ratification; the instruments of ratification shall be exchanged as soon as possible.

2. This Treaty shall enter into force upon the exchange of the instruments of ratification.

3. Upon the entry into force of this Treaty, the Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America, signed at London June 8, 1972, shall cease to have any effect between the United States and Belize. Nevertheless, the prior Treaty shall apply to any extradition proceedings in which the extradition documents have already been submitted to the courts of the Requested State at the time this Treaty enters into force, except that Article 15 of this Treaty shall be applicable to such proceedings. Article 14 of this Treaty shall apply to persons found extraditable under the prior Treaty.

Article 21

Termination

Either Contracting State may terminate this Treaty at any time by giving written notice to the other Contracting State, and the termination shall be effective six months after the date of receipt of such notice.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments have signed this Treaty.

DONE at Belize, in duplicate, this 30th day of March 2000.

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:

FOR THE GOVERNMENT OF BELIZE:

List of Offenses Referred to in Treaty

1. Murder; attempt to murder, including assault with intent to commit murder;

2. Manslaughter;

3. Malicious wounding; maiming; inflicting grievous bodily harm; assault occasioning actual bodily harm; unlawful throwing or application of any corrosive or injurious substance upon the person of another;

4. Offenses of a sexual nature, including rape, sexual assault, indecent assault, unlawful sexual acts upon children or persons with mental disabilities;

5. Procuring a person for immoral purposes; living on the earnings of prostitution;

6. Bigamy;

7. Kidnapping and abduction; false-imprisonment;

8. Offenses relating to children, including neglecting, ill-treating, abandoning, exposing, stealing or exploiting a child, whether for sexual or other purposes;

9. Obtaining property, money, valuable securities or other pecuniary advantage by false pretense or other forms of deception; theft; larceny; embezzlement; any other offense in respect of property involving fraud;

10. Robbery; assault with intent to rob;

11. Burglary, housebreaking, shopbreaking, or similar offenses;

12. Receiving or otherwise handling any goods, money, valuable securities or other property, knowing the same to have been stolen or unlawfully obtained;

13. Criminal intimidation; blackmail; extortion;

14. Offenses against the laws relating to corporations or companies, including false statements and other offenses committed by company directors, promoters, and other officers;

15 False accounting;

16. Fraud, including fraud against the Government or against individuals, including behavior which has the effect of depriving the Government, its agencies, or its citizens of money, valuable property, or the ability to conduct their affairs free from false statements and deceit;

17. Offenses against bankruptcy laws;

18. Any offense relating to counterfeiting; any offense against the laws relating to forgery or uttering what is forged;

19. Offenses against the law relating to bribery of persons, including the corrupt offering, paying, or making of inducements to any foreign official or foreign political party, official thereof, or candidate for foreign political office to assist such person in obtaining or retaining business for himself or in directing business to any other person; soliciting bribes, offering or accepting bribes;

20. Perjury and subornation of perjury; false statement; attempting to pervert or obstruct the course of justice;

21. Arson;

22. Malicious damage to property;

23. Money laundering;

24. Offenses relating to the willful issuance of a bad (illicit) check, including the issuance of a check under a false name or without having made arrangements with a financial institution, or after transactions have been suspended by such an institution; and the willful failure to honor the check;

25. An offense against the law relating to consumer protection;

26. An offense against the law relating to firearms, weapons, or explosive of any type;

27. An offense relating to the protection of public health or the environment, including conduct directed at the destruction, defacing, deterioration, or harming of the earth’s environment;

28. An offense against the laws relating to protection of intellectual property, copyrights, patents, or trademarks;

29. Offenses relating to fiscal matters, taxes or duties, including tax evasion or fiscal fraud, notwithstanding that the law of the Requested State does not impose the same kind of tax or duty or does not contain a tax, duty, or customs regulation of the same kind as the law of the Requesting State;

30. Smuggling; an offense against the law relating to the control of exportation or importation of goods of any type, or the intentional transfer of funds;

31. Immigration offenses, including alien smuggling;

32. An offense relating to gambling or lotteries;

33. Piracy; mutiny or other mutinous acts committed on board a vessel at sea;

34. Unlawful use, destruction, possession, control, seizure or hijacking of aircraft, vessels or other means of transportation;

35. Any malicious act done with intent to endanger the safety of persons travelling or being upon a railway;

36. Genocide or direct and public incitement to commit genocide;

37. Offenses under multilateral intentional conventions, binding on the Requesting and Requested States, for which fugitive offenders may be prosecuted or surrendered;

38. Impeding the arrest, detection or prosecution of a person who has or is believed to have committed an offense for which surrender may be granted under this Treaty;

39. An offense relating to escape from custody, or flight to avoid prosecution;

40. An offense relating to the law against terrorism.

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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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Belgium Extradition Treaty with the United States

April 6, 2011

Belgium International Extradition Treaty with the United States

April 27, 1987, Date-Signed

September 1, 1997, Date-In-Force

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

104TH CONGRESS

SENATE

LETTER OF TRANSMITTAL

THE WHITE HOUSE, June 9, 1995.

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 Kingdom of Belgium signed at Brussels on April 27, 1987. Also transmitted for the information of the Senate is the report of the Department of State with respect to the Treaty.

This Treaty is designed to update and standardize the conditions and procedures for extradition between the United States and Belgium. Most significantly, it substitutes a dual-criminality clause for the current list of extraditable offenses, thereby expanding the number of crimes for which extradition can be granted. The Treaty also provides a legal basis for temporarily surrendering prisoners to stand trial for crimes against the laws of the Requesting State.

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States. Upon entry into force, it will supersede the Treaty for the Mutual Extradition of Fugitives from Justice Between the United States and the Kingdom of Belgium, signed at Washington on October 26, 1901, and the Supplementary Extradition Conventions to the Extradition Convention of October 26, 1901, signed at Washington on June 20, 1935, and at Brussels on November 14, 1963.

This Treaty will make a significant contribution to international cooperation in law enforcement. I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.

WILLIAM J. CLINTON.

LETTER OF SUBMITTAL

DEPARTMENT OF STATE,

Washington, May 1, 1995.

The President,

The White House.

THE PRESIDENT: I have the honor to submit to you the Extradition Treaty between the United States of America and the Kingdom of Belgium (the “Treaty”), signed at Brussels on April 27, 1987. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification. I am submitting to you separately the Supplementary Treaty on Extradition between the United States of America and the Kingdom of Belgium to Promote the Repression of Terrorism, signed at Brussels on March 17, 1987 (the “Supplementary Treaty”), and am recommending that the Supplementary Treaty also be transmitted to the Senate for advice and consent to ratification.

The Treaty follows generally the form and content of extradition treaties recently concluded by the United States. It represents a concerted effort by the Department of State and the Department of Justice to modernize the legal tools available for the extradition of serious offenders, including narcotics traffickers.

Upon entry into force, this Treaty will supersede the Treaty for the Mutual Extradition of Fugitives from Justice, signed at Washington on October 26, 1901 (the “1901 Treaty”), and the Supplementary Extradition Conventions signed at Washington on June 20, 1935, and at Brussels on November 14, 1963 (the “1935 and 1963 Supplements”).

Article 1 obligates each Party to extradite to the other, pursuant to the provisions of the Treaty, any person wanted for prosecution or for the imposition or enforcement of a sentence in respect of an offense described in Article 2.

In Article 2, the Parties agree that an offense punishable by both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty shall be extraditable. Article 2 also provides that attempts and conspiracies to commit these offenses, and participation in the commission of the offenses, are extraditable. Inclusion of a dual-criminality clause rather than a list of offenses covered by the Treaty obviates the need to renegotiate or supplement the Treaty as offenses become punishable under the laws of both Parties. The Article further provides that in determining whether an offense is covered under the Treaty, the offense shall be considered an extraditable offense whether or not the laws in the Contracting Parties place the offenses within the same category of offenses or describe the offense by the same terminology.

Article 2 also permits extradition for offenses which are punishable by less than one year’s imprisonment, if extradition has been granted for a more serious extraditable offense specified in the request, and all other requirements of extradition have been met. Article 2(6) provides that extradition shall not be granted if the prosecution of the offense or the execution of the penalty has become barred by lapse of time under the law of the Requested State.

Article 3 provides that surrender may be refused on the grounds that the person sought is a national of the requested Party, but that each Party’s Executive Authority–in the case of the United States, the Secretary of State–shall have the power to extradite its nationals, if, in its discretion, it deems extradition appropriate. The Article provides that in cases in which extradition is so refused, the Requesting State may request that the case be submitted to the competent authorities of the Requested State for prosecution.

Article 4 incorporates a political offense exception to the obligation to extradite. Article 4(1) states generally that extradition shall not be granted for political offenses. Article 4(2) expressly excludes from the reach of the political offense exception several categories of offenses, including the following:

(i) a murder or other criminal act directed against the person of a Head of State of one of the Contracting Parties, or a member of the Head of State’s family;

(ii) the attempt to commit one of the offenses described above or participation in the commission of those offenses; and

(iii) an “association of wrongdoers” formed to commit any of the offenses described above under the laws of Belgium, or a conspiracy to commit any such offense under the laws of the United States.

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 the executive authority of the Requested State can refuse extradition for an offense under military law which is not an offense under ordinary criminal law.

Article 4(5) provides that if the Supplementary Treaty is in force, the provisions of that treaty shall apply if there is a conflict between its provisions and those of Articles 4(1) through 4(4). As discussed earlier, the Supplementary Treaty limits the application of the political offense exception with respect to specified criminal acts that are typically committed by terrorists.

Article 5 bars extradition when the person sought has been convicted or acquitted in the Requested State for the same offense, but does not bar extradition if the competent authorities in the Requested State have declined to prosecute or have decided to discontinue criminal proceedings.

Under Article 6, when an offense for which surrender is sought is punishable by death under the laws of the Requesting State and is not so punishable under the laws of the Requested State, the Requested State may refuse extradition unless the Requesting State provides assurances that the death penalty will not be carried out. This Article also provides that the executive authority of the Requested State may refuse extradition for humanitarian reasons pursuant to its domestic law.

Articles 7-9 address the procedures by which extradition is to be accomplished. Article 7 describes the documents that are required to support a request for extradition. Article 8 establishes the procedures under which documents submitted pursuant to Article 7 shall be received and admitted into evidence in the Requested State. Article 9 provides that all documents submitted by the Requesting State shall be translated into the language, or one of the official languages, of the Requested State.

Article 10 provides for the provisional arrest and detention of a fugitive for no more than 75 days pending receipt by the executive authority of the requested State of a fully documented extradition request in conformity with Article 7. Article 7 explicitly provides that the discharge of a fugitive from custody pursuant to this Article does not prejudice subsequent re-arrest and extradition upon later delivery of the extradition request and supporting documents.

Article 11 specifies the procedures to govern the surrender and return of fugitive offenders. The Requested State is required promptly to notify the Requesting State of its decision on extradition and, if denied in whole or in part, to provide an explanation.

If the request for extradition is granted, the fugitive must be removed from the territory of the Requested State within the time prescribed by the law of the Requested State.

Article 12 provides that if a person is being prosecuted or is serving a sentence in the Requested State for a different offense, that State may (a) defer surrender until the proceedings are concluded and the sentence served, or (b) temporarily surrender the person to the Requesting State solely for the purpose of prosecution.

Article 13 sets forth a non-exhaustive list of factors to be considered by the Requested State in determining to which State to surrender a person sought by more than one State.

Article 14 provides for the seizure and surrender to the Requesting State of all property related to the offense for which extradition is requested. This obligation, however, is subject to the rights of third parties.

Article 15 expressly incorporates into the Treaty the rule of speciality. It provides that a person extradited under the Treaty may not be detained, tried, or punished for an offense other than that for which extradition has been granted, unless the person leaves the territory of the Requesting State after extradition and voluntarily returns to it; the person does not leave the territory of the Requesting State within 15 days of the day on which that person is free to leave; or the person voluntarily consents.

Article 16 permits surrender without further proceedings if the person sought agrees to surrender in accordance with the laws of the Requested State. It further provides that the rule of speciality in Article 15 shall not apply to such transfers.

Article 17 governs the transit through the territory of one State of a person being surrendered to the other State by a third party.

Article 18 contains provisions on representation and expenses that are similar to those found in modern extradition treaties. Specifically, the Requested State shall bear ordinary expenses for the legal representation of the Requesting State in any proceedings arising out of a request for extradition. The Requesting State shall bear the expenses related to the translation of documents and the transportation of the person surrendered. Article 18(c) clarifies that neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought under the Treaty.

Article 19 provides that the U.S. Department of Justice and the Ministry of Justice of Belgium may consult with each other directly, or through the facilities of the International Criminal Police Organization, in connection with the processing of individual cases and in furtherance of maintaining and improving procedures for the implementation of the Treaty.

Article 20, like the parallel provision in almost all recent United States extradition treaties, stipulates that the Treaty is retroactive in that it shall apply to offenses committed before as well as after the date the Treaty enters into force.

Article 21 contains final clauses dealing with the Treaty’s entry into force and termination. Paragraph 1 states that the Treaty shall be subject to ratification, and the instruments of ratification shall be exchanged as soon as possible. Paragraph 2 states that the Treaty shall enter into force on the first day of the second month after the exchange of instruments of ratification. Pursuant to paragraph 3, upon entry into force of this Treaty, the Treaty between the Government of the United States of America and the Government of Belgium, signed at Washington on October 26, 1901, and the Supplementary Extradition Conventions, signed at Washington on June 20, 1935, and at Brussels on November 14, 1963, shall cease to have effect. That notwithstanding, the prior treaties will continue to apply to any extradition proceedings in which the extradition documents have already been submitted to the courts of the Requested State at the time this Treaty enters into force, except that Article 2 of this Treaty (Extraditable Offenses) will apply to such proceedings. Paragraph 3 further provides that Articles 12 (Temporary and Deferred Surrender) and 15 (Rule of Speciality) shall apply to persons extraditable under the prior treaties.

Article 22 provides that either State may terminate the Treaty at any time upon written notice to the other Party; the Treaty would terminate six months after the date of receipt of such notice.

A Technical Analysis explaining in detail the provisions of the treaty is being prepared by the United States negotiating delegation and will be submitted separately to the Senate Committee on Foreign Relations.

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

Respectfully submitted,

WARREN CHRISTOPHER.

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE KINGDOM OF BELGIUM

THE GOVERNMENT OF THE UNITED STATES OF AMERICA and THE GOVERNMENT OF THE KINGDOM OF BELGIUM,

Recalling the Treaty between the Contracting States for the Mutual Extradition of Fugitives from Justice, signed at Washington, October 26, 1901, and the Supplementary Extradition Conventions between the Contracting States, signed at Washington, June 20, 1935 and at Brussels, November 14, 1963;

Noting that both the Government of the United States of America and the Government of Belgium currently apply the terms of that Treaty; and

Desiring to provide for more effective cooperation between the two States in the suppression of crime, and, for that purpose, to conclude a new treaty for the extradition of offenders;

Have agreed as follows:

Article 1

Obligation to Extradite

The Contracting States agree to extradite to each other, pursuant to the provisions of this Treaty, persons who have been charged with or found guilty of an extraditable offense within the jurisdiction of one of the Contracting States.

Article 2

Extraditable Offenses

1. An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty for a maximum period of more than one year or by a more severe penalty.

2. If extradition is requested for the execution of a sentence, the sentence originally imposed must have been deprivation of liberty for a period of at least one year or a more severe penalty.

3. The following shall also be an extraditable offense:

(a) an attempt to commit one of the offenses described in paragraph 1 or the participation as co-author or accomplice of a person who commits or attempts to commit such an offense; or

(b) an formed to commit any of the offenses described in paragraph 1 under the laws of Belgium, or a conspiracy to commit any such offenses as provided by the laws in the United States.

4. In determining whether an offense is an extraditable offense, the Contracting States:

(a) shall consider only the essential elements of the offense punishable under the laws of both states; and

(b) shall not consider as an essential element of an offense punishable in the United States an element such as interstate transportation or use of the mails or of other facilities affecting interstate or foreign commerce, since such an element is for the purpose of establishing jurisdiction in a United States federal court;

(c) shall disregard that the respective laws do not place the offense within the same category of offenses or describe the offense by the same terminology.

5. If extradition has been granted for an extraditable offense or for the execution of a sentence, it shall also be granted for:

(a) any other offense specified in the request even if the latter offense is punishable by less than one year’s deprivation of liberty, and

(b) the execution of any other penalty, including a fine, specified in the request for extradition even if the severity of the penalty does not fulfill the requirement of the minimum punishment imposed by paragraph 2,

provided that all other requirements for extradition are met.

6. Extradition shall not be granted if prosecution of the offense or execution of the penalty has been barred by lapse of time under the laws of the Requested State. However, acts constituting an interruption or a suspension of the time-bar in the Requesting State shall be taken into consideration insofar as possible.

Article 3

Nationality

1. Neither Contracting State shall be bound to extradite its own nationals, but the Executive Authority of the United States shall have the power to extradite such persons if, in its discretion, it be deemed proper to do so.

2. If extradition is refused solely on the basis of the nationality of the person sought, the Requested State shall, at the request of the Requesting State, submit the case to its authorities for prosecution.

Article 4

Political and Military Offenses

1. Extradition shall not be granted if the offense for which extradition is requested is a political offense.

2. For the purposes of this Treaty, the following offenses shall not be considered to be political offenses:

(a) a murder or other criminal act directed against the person of a Head of State of one of the Contracting States, or of a member of the Head of State’s family;

(b) the attempt to commit one of the above-mentioned offenses or the participation as co-author or accomplice of a person who commits or attempts to commit such an offense;

(c) an formed to commit any of the foregoing offenses under the laws of Belgium, or a conspiracy to commit any such offenses as provided by the laws in the United States.

3. Notwithstanding the terms of paragraph 2 of this Article, extradition shall not be granted if the executive authority of the Requested State determines that the request was politically motivated.

4. The executive authority of the Requested State may refuse extradition for offenses under military law which are not offenses under ordinary criminal law.

5. In the event of a conflict between the provisions of paragraphs 1 through 4 of this article and articles 2 and 3 of the Supplementary Treaty on Extradition between the United States of America and the Kingdom of Belgium to Promote the Repression of Terrorism, signed at Washington on March 17, 1987, the latter provisions shall apply when that treaty is in force.

Article 5

Prior Prosecution

1. Extradition shall not be granted when the person sought has been found guilty, convicted or acquitted in the Requested State for the offense for which extradition is requested.

2. Extradition shall not be precluded by the fact that the authorities in the Requested State have decided not to prosecute the person sought for the acts for which extradition is requested, or to discontinue any criminal proceedings which have been instituted against the person sought for those acts.

Article 6

Humanitarian Considerations

1. If an offense for which extradition is requested is punishable by death in the Requesting State, and if in respect of such offense the death penalty is not provided for by the Requested State or is not normally carried out by it, extradition may be refused, unless the Requesting State gives such assurances as the Requested State considers sufficient that the death penalty will not be carried out.

2. Notwithstanding the provisions of the present Treaty, the executive authority of the Requested State may refuse extradition for humanitarian reasons pursuant to its domestic law.

Article 7

Extradition Procedures and Required Documents

1. Every request for extradition shall be submitted through the diplomatic channel.

2. Each request shall be supported by:

(a) documents, statements, or other types of information which describe the identity, nationality, and probable location of the person sought;

(b) information describing the facts of the offense and the procedural history of the case;

(c) the text of the law describing the essential elements of the offense for which extradition is requested;

(d) the text of the law describing the punishment for the offense;

(e) the text or a statement of the provisions of law describing any time limit on the prosecution or the service of the sentence; and

(f) the documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of this Article, as applicable.

3. A request for extradition of a person who is sought for prosecution shall also be supported by:

(a) a copy of the warrant or order of arrest issued by a judge or other competent authority;

(b) a copy of the charging document or, if that does not exist, a report issued by the prosecuting authority setting forth the charges against the person sought; and

(c) such information as would justify the committal for trial of the person if the offense had been committed in the Requested State.

4. A request for extradition relating to a person who has been found guilty of the offense for which extradition is sought shall also be supported by:

(a) a copy of the judgment of conviction or, if such copy is not available, a statement by a judicial authority that the person has been found guilty;

(b) information establishing that the person sought is the person to whom the finding of guilt refers; and

(c) a copy of the sentence imposed, if the person sought has been sentenced, and a statement establishing to what extent the sentence has been carried out; or

(d) if the person has been found guilty of an offense but no sentence has been imposed, a statement affirming that the Requesting State intends to impose a sentence and a copy of the warrant for the arrest of the person; and

(e) in the case of a person who has been found guilty in absentia, the documents required by paragraph 3.

Article 8

Admissibility of Documents

The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if:

(a) in the case of a request from the United States of America, they are authenticated by the Department of State of the United States;

(b) in the case of a request from Belgium, they are certified by the diplomatic or consular officer of the United States resident in Belgium, as provided by the extradition laws of the United States; or

(c) they are certified or authenticated in any other manner accepted by the laws of the Requested State.

Article 9

Translation

All documents submitted by the Requesting State shall be translated into the language, or one of the official languages, of the Requested State.

Article 10

Provisional Arrest

1. In case of urgency, a Contracting State may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the United States Department of Justice and the Ministry of Justice of Belgium. The facilities of the International Criminal Police Organization (Interpol) may be used to transmit such a request.

2. The application for provisional arrest shall contain:

(a) a description of the person sought;

(b) the location of the person sought, if known;

(c) a brief statement of the facts of the case, including, if possible, the time and location of the offense;

(d) a description of the laws violated;

(e) a statement of the existence of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought; and

(f) a statement that a request for extradition of the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the expiration of 75 days from the date of provisional arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 7.

5. The fact that the person sought has been discharged from custody pursuant to paragraph 4 of this Article shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are delivered at a later date.

Article 11

Decision and Surrender

1. The Requested State shall promptly notify the Requesting State of its decision on the request for extradition.

2. If the request is denied in whole or in part, the Requested State shall provide an explanation of the reasons for the denial. The Requested State shall provide copies of pertinent judicial decisions upon request.

3. If the request for extradition is granted, the authorities of the Contracting States shall agree on the time and place for the surrender of the person sought.

4. If the person sought is not removed from the territory of the Requested State within such time as may be prescribed by the law of that State, he may be discharged from custody, and the Requested State may subsequently refuse extradition for the same offense.

5. The period of time spent in detention in the Requested State pursuant to the extradition request of the Requesting State shall be subtracted from the period of detention to be served in the Requesting State. The Contracting States agree to communicate to one another such information relating to the period of detention.

Article 12

Temporary and Deferred Surrender

1. If the extradition request is granted in the case of a person who is being proceeded against or is serving a sentence in the Requested State, the Requested State may temporarily surrender the person sought to the Requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody in the Requesting State and shall be returned to the Requested State after the conclusion of the proceedings against that person, in accordance with conditions to be determined by agreement of the Contracting States. The time spent in custody in the territory of the Requesting State will be deducted from the time remaining to be served in the Requested State.

2. The Requested State may postpone the surrender of a person who is being prosecuted or who is serving a sentence in that State. The postponement may continue until the prosecution of the person sought has been concluded and any sentence has been served.

Article 13

Requests for Extradition Made by Several States

If the Requested State receives requests from the other Contracting State and from any other State or States for the extradition of the same person, either for the same offense or for different offenses, the executive authority of the Requested State shall determine to which State it will surrender the person. In making its decision, the Requested State shall consider all relevant factors, including but not limited to:

(a) whether the requests were made pursuant to treaty;

(b) the place where each offense was committed;

(c) the respective interests of the Requesting States;

(d) the gravity of the offenses;

(e) the nationality of the victim;

(f) the possibility of further extradition between the Requesting States; and

(g) the chronological order in which the requests were received from the Requesting States.

Article 14

Seizure and Surrender of Property

1. To the extent permitted under its law, the Requested State may seize and surrender to the Requesting State all items, including articles, documents, and evidence, connected with the offense in respect of which extradition is granted. The items mentioned in this Article may be surrendered even when the extradition cannot be effected due to the death, disappearance, or escape of the person sought.

2. The Requested State may condition the surrender of the items upon satisfactory assurances from the Requesting State that the items 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.

3. The rights of third parties to such items shall be duly respected.

Article 15

Rule of Speciality

1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:

(a) the offense for which extradition has been granted or a differently denominated offense based on the same facts on which extradition was granted, provided such offense is extraditable or is a lesser included offense;

(b) an offense committed after the extradition of the person; or

(c) an offense for which the executive authority of the Requested State consents to the person’s detention, trial, or punishment. For the purpose of this subparagraph:

(i) the Requested State may require the submission of the documents called for in Article 7; and

(ii) notwithstanding the above, the person extradited may be detained by the Requesting State for 75 days, or for such longer period of time as the Requested State may authorize, while the request is being processed, in which case, the Requesting State shall transmit to the Requested State a statement of the existence of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought.

2. A person extradited under this Treaty may not be extradited to a third State for an offense committed prior to his surrender unless the surrendering State consents.

3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of that person to a third State, if:

(a) that person leaves the territory of the Requesting State after extradition and voluntarily returns to it;

(b) that person does not leave the territory of the Requesting State within 15 days of the day on which that person is free to leave; or

(c) if that person voluntarily consents.

Article 16

Waiver of Extradition

If the person sought consents to surrender to the Requesting State in accordance with the practice of the Requested State, the Requested State may surrender the person as expeditiously as possible without further proceedings and the rule of speciality shall not apply.

Article 17

Transit

1. Either Contracting State may authorize transportation through its territory of a person surrendered to the other State by a third State. A request for transit shall be made through the diplomatic channel or directly between the United States Department of Justice and the Ministry of Justice of Belgium. The facilities of the International Criminal Police Organization (Interpol) may be used to transmit such a request. This request shall contain a description of the person being transported and a brief statement of the facts of the case as well as a confirmation of the existence of the documents referred to in Article 10(2)(e). A person in transit may be detained in custody for 24 hours. Transit may be refused for a national of the Requested State and for a person sought for prosecution or to serve a penalty of deprivation of liberty imposed by the authorities of that State.

2. No authorization for transit is required when air transportation is used and no landing is scheduled on the territory of the State being transited. If an unscheduled landing occurs, that State may require the request for transit as provided in paragraph 1. That State shall detain the person to be transported until the request is received and the transit is effected, so long as the request is received within 24 hours of the unscheduled landing.

Article 18

Representation and Expenses

1. The Requested State shall advise, assist, appear in court on behalf of the Requesting State, and represent the interests of the Requesting State, in any proceeding arising out of a request for extradition.

2. The Requesting State shall bear the expenses related to the translation of documents and the transportation of the person surrendered. The Requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings.

3. Neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought or for representation and litigation expenses incurred under this treaty.

Article 19

Consultation

The United States Department of Justice and the Ministry of Justice of Belgium may consult with each other directly (or through the facilities of Interpol) in connection with the processing of individual cases and in furtherance of maintaining and improving procedures for the implementation of this Treaty.

Article 20

Application

This Treaty shall apply to offenses committed before as well as after it enters into force.

Article 21

Ratification and Entry into Force

1. This Treaty shall be subject to ratification; the instruments of ratification shall be exchanged at Washington as soon as possible.

2. This Treaty shall enter into force on the first day of the second month after the exchange of instruments of ratification.

3. Upon the entry into force of this Treaty, the Treaty between the Government of the United States of America and the Government of Belgium, signed at Washington on October 26, 1901, and the Supplementary Extradition Conventions signed at Washington on June 20, 1935 and at Brussels on November 14, 1963 shall cease to have any effect. Nevertheless, the prior treaties shall apply to any extradition proceedings in which the extradition documents have already been submitted to the courts of the Requested State at the time this Treaty enters into force, except that Article 2 of this Treaty shall be applicable to such proceedings. Articles 12 and 15 of this Treaty shall apply to persons who have been or could be extradited under the prior treaties.

Article 22

Termination

Either Contracting State may terminate this Treaty at any time by giving written notice to the other Contracting State. This termination shall be effective six months after the date of such notice.

IN WITNESS WHEREOF, the undersigned, being duly authorized for this purpose, have signed this Treaty.

DONE at Brussels, in duplicate, this 27th day of April 1987, in the English, French and Dutch languages, all three texts being equally authentic.

For the Government of the United States of America:

For the Government of the Kingdom of Belgium:

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Belgium Extradition Treaty-EU Protocol with the United States

December 16, 2004, Date-Signed

February 1, 2010, Date-In-Force

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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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Barbados Extradition Treaty with the United States

April 5, 2011

Barbados International Extradition Treaty with the United States

February 28, 1996, Date-Signed

March3, 2000, Date-In-Force

STATUS:
July 31, 1997. 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

105TH CONGRESS

1st Session

SENATE

LETTER OF TRANSMITTAL

THE WHITE HOUSE, July 31, 1997.

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 Government of the United States of America and the Government of Barbados, signed at Bridgetown on February 28, 1996.

In addition, I transmit, for the information of the Senate, the report of the Department of State with respect to the Treaty. As the report explains, the Treaty will not require implementing legislation.

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States.

This Treaty will, upon entry into force, enhance cooperation between the law enforcement communities of both countries, and thereby make a significant contribution to international law enforcement efforts. It will supersede the Extradition Treaty between the United States and Great Britain that was signed at London on December 22, 1931, which was made applicable to Barbados upon its entry into force on June 24, 1935, and which the United States and Barbados have continued to apply following Barbados becoming independent. However, that treaty has become outmoded and the new Treaty will provide significant improvements.

I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.

WILLIAM J. CLINTON.

LETTER OF SUBMITTAL

DEPARTMENT OF STATE,

Washington, June 13, 1997.

The PRESIDENT,
The White House.

THE PRESIDENT: I have the honor to submit to you the Extradition Treaty between the Government of the United States of America and the Government of Barbados (the “Treaty”), signed at Bridgetown on February 28, 1996. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification.

The Treaty follows closely the form and content of extradition treaties recently concluded by the United States. The treaty represents part of a concerted effort by the Department of State and the Department of Justice to develop modern extradition relationships to enhance the United States ability to prosecute serious offenders including, especially, narcotics traffickers and terrorists.

The Treaty marks a significant step in bilateral cooperation between the United States and Barbados. Upon entry into force, it will supersede the Extradition Treaty between the United States and Great Britain signed at London on December 22, 1931, which was made applicable to Barbados upon its entry into force on June 24, 1935, and which the United States and Barbados have continued to apply following Barbados becoming independent. That treaty has become outmoded and the new Treaty will provide significant improvements. The Treaty can be implemented without new legislation.

Article 1 obligates the Contracting States to extradite to each other, pursuant to the provisions of the Treaty, persons sought for prosecution or convicted of an extraditable offense in the Requesting State.

Article 2(1) defines an extraditable offense as one punishable under the laws of both Contracting States by deprivation of liberty for a period of more than one year, or by a more severe penalty. Use of such a “dual criminality” clause rather than a list of offenses covered by the Treaty obviates the need to renegotiate or supplement the Treaty as additional offenses become punishable under the laws of both Contracting States.

Article 2(2) defines an extraditable offense to include also an attempt or a conspiracy to commit, aiding or abetting, counselling, causing or procuring the commission of or being an accessory before or after the fact to an extraditable offense as described in Article 2(1).

Additional flexibility is provided by Article 2(3), which provides that an offense shall be considered an extraditable offense: (1) whether or not the laws in the Contracting States place the offense within the same category of offenses or describe the offense by the same terminology; or (2) 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 merely for the purpose of establishing jurisdiction in a United States federal court. With regard to offenses committed outside the territory of the Requesting State, Article 2(4) provides the States with discretion to grant or deny extradition if the offense for which extradition is sought would not be punishable under the laws of the Requested State in similar circumstances. The United States recognizes the extraterritorial application of many of its criminal statutes and frequently makes requests for fugitives whose criminal activity occurred in foreign countries with the intent, actual or implied, of affecting the United States. Barbados did not indicate any anticipated difficulty with this provision.

Article 3 provides that extradition shall not be refused on the ground that the person sought is a national of the Requested State. Neither Party, in other words, may invoke nationality as a basis for denying an extradition.

As is customary in extradition treaties, Article 4 incorporates a political offense exception to the obligation to extradite. 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) specifies three categories of offenses that shall not be considered to be political offenses:

(a) a murder or other willful crime against the person of a Head of State of one of the Contracting States, or of a member of the Head of State’s family;

(b) an offense for which both Contracting States are obliged pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their competent authorities for a decision as to prosecution; and

(c) a conspiracy or attempt to commit any of the offenses described above, or aiding and abetting a person who commits or attempts to commit such offenses.

The Treaty’s political offense exception is substantially identical to that contained in several other modern extradition treaties including the treaty with Jordan, which recently received Senate advice and consent. Offenses covered by Article 4(2)(b) include:

aircraft hijacking covered by The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague December 16, 1970, and entered into force October 14, 1971 and,

aircraft sabotage covered by the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal September 23, 1971, and entered into force January 26, 1973.

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) permits the Requested State to deny extradition for military offenses that are not offenses under ordinary criminal law (for example, desertion).

Article 5 bars extradition when the person sought has been convicted or acquitted in the Requested State for the same offense, but does not bar extradition if the competent authorities in the Requested State have declined to prosecute or have decided to discontinue criminal proceedings against the person sought.

Article 6 establishes the procedures and describes the documents that are required to support an extradition request. The Article requires that all requests be submitted through the diplomatic channel. Article 6(3)(c) provides that a request for the extradition of a person sought for prosecution be supported by evidence providing probable cause under the laws of the Requested State for arrest and committal for trial if the offense had been committed in the Requested State. This is a lesser evidentiary standard than that contained in the current extradition treaty, and therefore should significantly improve the United States’ ability to obtain extradition of fugitives from abroad.

Article 7 establishes the procedures under which documents submitted pursuant to the provisions of this Treaty shall be received and admitted into evidence.

Article 8 enables extradition requests to be granted irrespective of statutes of limitations in either the Requesting or Requested State.

Article 9 sets forth procedures for the provisional arrest and detention of a person sought pending presentation of the formal request for extradition. Article 9(4) provides that if the Requested State’s executive authority has not received the request for extradition and supporting documentation required in Article 6 within sixty (60) days after the provisional arrest, the person may be discharged from custody. Article 9(5) provides explicitly that discharge from custody pursuant to Article 9(4) does not prejudice subsequent rearrest and extradition upon later delivery of the extradition request and supporting documents.

Article 10 specifies the procedures governing surrender and return of persons sought. It requires the Requested State to provide prompt notice to the Requesting State through the diplomatic channel regarding its extradition decision. If the request is denied in whole or in part, Article 10(2) requires the Requested State to provide information regarding the reasons therefor. If extradition is granted, the authorities of the Contracting States shall agree on time and place of surrender of the person sought.

Article 11 concerns temporary and deferred surrender. If a person whose extradition is sought is being processed against or is serving a sentence in the Requested State, that State may temporarily surrender the person to the Requesting State for the purpose of prosecution. Alternatively, the Requested State may postpone the extradition proceedings until its prosecution has been concluded or the sentence imposed has been served.

Article 12 sets forth a nonexclusive list of factors to be considered by the Requested State in determining to which State to surrender a person sought by more than one State.

Article 13 provides for the seizure and surrender to the Requesting State of all articles, documents, and evidence connected with the offense for which extradition is granted, to the extent permitted under the law of the Requested State. Such property may be surrendered even when extradition cannot be effected due to the death, disappearance, or escape of the person sought. Surrender of property may be deferred if it is needed as evidence in the Requested State and may be conditioned upon satisfactory assurances that it will be returned. Article 13(3) imposes an obligation to respect the rights of third parties in affected property.

Article 14 sets forth the rule of speciality. It provides, subject to specific exceptions, that a person extradited under the Treaty may not be detained, tried, or punished in the Requesting State for an offense other than that for which extradition has been granted, unless a waiver of the rule is granted by the executive authority of the Requested State. Similarly, the Requesting State may not extradite such person to a third State for an offense committed prior to the original surrender unless the Requested State consents. These restrictions shall not prevent the detention, trial or punishment of an extradited person, or that person’s extradition to a third State if the extradited person leaves the Requesting State after extradition and voluntarily returns to it or fails to leave the Requesting State within ten days of being free to do so.

Article 15 permits surrender to the Requesting State without further proceedings if the person sought consents to surrender.

Article 16 governs the transit through the territory of one Contracting State of a person being surrendered to the other State by a third State.

Article 17 contains provisions on representation and expenses that are similar to those found in other modern extradition treaties. Specifically, the Requested State is required to represent the interests of the Requesting State in any proceedings arising out of a request for extradition. The United States and Barbados understand that the Requesting State will bear the costs in the event it elects to retain private counsel to pursue the extradition request. The Requesting State is required to bear the expenses related to the translation of documents and the transportation of the person surrendered. Article 17(3) clarifies that neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought under the Treaty.

Article 18 states that the United States Department of Justice and the Attorney General of Barbados may consult with each other directly in connection with the processing of individual cases and in furtherance of maintaining and improving Treaty implementation procedures. Consultations also may address issues of training and technical assistance for prosecutors and other legal officials.

Article 19, like the parallel provision in almost all recent United States extradition treaties, states that the Treaty shall apply to offenses committed before as well as after the date the Treaty enters into force.

Ratification and entry into force are addressed in Article 20. That Article provides that the States shall exchange instruments of ratification to bring the treaty into force. Article 20(3) provides that upon entry into force, the Extradition Treaty between the United States of America and Great Britain, signed at London December 22, 1931, shall cease to have effect between the United States and Barbados, with certain noted exceptions.

Under Article 21, either Contracting State may terminate the Treaty at any time upon written notice to the other Contracting State, with termination to become effective six months after the date of receipt of such notice.

A Technical Analysis explaining in detail the provisions of the Treaty is being prepared by the United States negotiating delegation and will be submitted separately to the Senate Committee on Foreign Relations.

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

Respectfully submitted.

MADELEINE ALBRIGHT.

EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF BARBADOS

The Government of the United States of America and the Government of Barbados;

Recalling the Treaty for the Mutual Extradition of Criminals between Great Britain and the United States of America, signed at London December 22, 1931,

Noting that both the Government of Barbados and the Government of the United States of America currently apply the terms of that Treaty, and

Desiring to provide for more effective cooperation between the two States in the suppression of crime, and, for that purpose, to conclude a new treaty for the extradition of offenders;

Have agreed as follows:

Article 1

Obligation to Extradite

The Contracting States agree to extradite to each other, pursuant to the provisions of this Treaty, persons sought for prosecution or convicted of an extraditable offense by the authorities in the Requesting State.

Article 2

Extraditable Offenses

1. An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty for a period of more than one year or by a more severe penalty.

2. An offense shall also be an extraditable offense if it consists of an attempt or a conspiracy to commit, aiding or abetting, counselling or procuring the commission of, or being an accessory before or after the fact to, any offense described in paragraph 1.

3. For the purposes of this Article, an offense shall be an extraditable offense:
(a) whether or not the laws in the Contracting States place the offense within the same category of offenses or describe the offense by the same terminology; or

(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 merely for the purpose of establishing jurisdiction in a United States federal court.

4. If the offense was committed outside of the territory of the Requesting State, extradition shall be granted in accordance with this treaty if the laws in the Requested State provide for punishment of an offense committed outside of its territory in similar circumstances. If the laws in the Requested State do not so provide, the executive authority of the Requested State may, in its discretion, grant extradition provided the requirements of this treaty are met.

5. If extradition has been 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 less than one year’s deprivation of liberty, provided that all other requirements for extradition are met.

Article 3

Nationality

Extradition shall not be refused on the ground that the person sought is a national of the Requested State.

Article 4

Political and Military Offenses

1. Extradition shall not be granted if the offense for which extradition is requested is a political offense.

2. For the purposes of this Treaty, the following offenses shall not be considered to be political offenses:
(a) a murder or other willful crime against the person of a Head of State of one of the Contracting States, or of a member of the Head of State’s family;

(b) an offense for which both Contracting States 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; and

(c) a conspiracy or attempt to commit any of the foregoing offenses, or aiding or abetting a person who commits or attempts to commit such offenses.

3. Notwithstanding the terms of paragraph 2 of this Article, extradition shall not be granted if the executive authority of the Requested State determines that the request was politically motivated.

4. The executive authority of the Requested State may refuse extradition for offenses under military law which are not offenses under ordinary criminal law.

Article 5

Prior Prosecution

1. 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.

2. Extradition shall not be precluded by the fact that the authorities in the Requested States have decided not to prosecute the person sought for the acts for which extradition is requested, or to discontinue any criminal proceedings which have been instituted against the person sought for those acts.

Article 6

Extradition Procedures and Required Documents

1. All requests for extradition shall be submitted through the diplomatic channel.

2. All requests shall be supported by:
(a) documents, statements, or other types of information which describe the identity, and probable location of the person sought;

(b) information describing the facts of the offense and the procedural history of the case;

(c) information as to:
(i) the provisions of the laws describing the essential elements of the offense for which extradition is requested;

(ii) the provisions of the law describing the punishment for the offense; and

(iii) the provisions of law describing any time limit on the prosecution; and

(d) the documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of this Article, as applicable.

3. A request for extradition of a person who is sought for prosecution shall also be supported by:
(a) a copy of the warrant or order of arrest, if any, issued by a judge or other competent authority of the Requesting State;

(b) a document setting forth the charges; and

(c) such information as would provide probable cause, according to the law of the Requested State, for the arrest and committal for trial of the person if the offense had been committed in the Requested State.

4. A request for extradition relating to a person who has been convicted of the offense for which extradition is sought shall also be supported by:
(a) a copy of the judgment of conviction or, if such copy is not available, a statement by a judicial authority that the person has been convicted;

(b) information establishing that the person sought is the person to whom the conviction refers;

(c) a copy of the sentence imposed, if the person sought has been sentenced, and a statement establishing to what extent the sentence has been carried out; and

(d) in the case of a person who has been convicted in absentia, the documents required by paragraph 3.

Article 7

Admissibility of Documents

The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if:
(a) in the case of a request from the United States, they are authenticated by an officer of the United States Department of State and are certified by the principal diplomatic or consular officer of Barbados resident in the United States;

(b) in the case of a request from Barbados, they are certified by the principal diplomatic or consular officer of the United States resident in Barbados, as provided by the extradition laws of the United States; or

(c) they are certified or authenticated in any other manner accepted by the law of the Requested State.

Article 8

Lapse of Time

Extradition shall not be denied because of the prescriptive laws of either the Requesting State or the Requested State.

Article 9

Provisional Arrest

1. In case of urgency, a Contracting State may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the United States Department of Justice and the Attorney General in Barbados. Such a request may also be transmitted through the facilities of the International Criminal Police Organization (INTERPOL), or through such other means as may be settled by arrangement between the Contracting States.

2. The application for provisional arrest shall contain:
(a) a description of the person sought;

(b) the location of the person sought, if known;

(c) a brief statement of the facts of the case, including, if possible, the time and location of the offense;

(d) a description of the laws violated;

(e) a statement of the existence of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought; and

(f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of provisional arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 6.

5. The fact that the person sought has been discharged from custody pursuant to paragraph 4 of this Article shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are delivered at a later date.

Article 10

Decision and Surrender

1. The Requested State shall promptly notify the Requesting State through the diplomatic channel of its decision on the request for extradition.

2. If the request is denied in whole or in part, the Requested State shall provide an explanation of the reasons for the denial. The Requested State shall provide copies of pertinent judicial decisions upon request.

3. If the request for extradition is granted, the authorities of the Contracting States shall agree on the time and place for the surrender of the person sought.

4. If the person sought is not removed from the territory of the Requested State within the time prescribed by the law of that State, that person may be discharged from custody, and the Requested State may subsequently refuse extradition for the same offense.

Article 11

Temporary and Deferred Surrender

1. If the extradition request is granted in the case of a person who is being proceeded against or is serving a sentence in the Requested State, the Requested State may temporarily surrender the person sought to the Requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody in the Requesting State and shall be returned 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 Contracting States.

2. The Requested State may postpone the extradition proceedings against a person who is being prosecuted or who is serving a sentence in that State. The postponement may continue until the prosecution of the person sought has been concluded or until such person has served any sentence imposed.

Article 12

Requests for Extradition Made by Several States

If the Requested State receives requests from the other Contracting State and from any other State or States for the extradition of the same person, either for the same offense or for different offenses, the executive authority of the Requested State shall determine to which State it will surrender the person. In making its decision, the Requested State shall consider all relevant factors, including but not limited to:
(a) whether the requests were made pursuant to treaty;

(b) the place where each offense was committed;

(c) the respective interests of the Requesting States;

(d) the gravity of the offenses;

(e) the nationality of the victim;

(f) the possibility of further extradition between the Requesting States; and

(g) the chronological order in which the requests were received from the Requesting States.

Article 13

Seizure and Surrender of Property

1. To the extent permitted under its law, the Requested State may seize and surrender to the Requesting State all articles, documents, and evidence connected with the offense in respect of which extradition is granted. The items mentioned in this Article may be surrendered even when the extradition cannot be effected due to the death, disappearance, or escape of the person sought.

2. The Requested State may condition the surrender of the property 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 property if it is needed as evidence in the Requested State.

3. The rights of third parties in such property shall be duly respected.

Article 14

Rule of Speciality

1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:
(a) the offense for which extradition has been granted or a differently denominated offense based on the same facts on which extradition was granted, provided such offense is extraditable, or is a lesser included offense;

(b) an offense committed after the extradition of the person; or

(c) an offense for which the executive authority of the Requested State consents to the person’s detention, trial, or punishment. For the purpose of this subparagraph:
(i) the Requested State may require the submission of the documents called for in Article 6; and

(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request is being processed.

2. A person extradited under this Treaty may not be extradited to a third State for an offense committed prior to his surrender unless the surrendering State consents.

3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of that person to a third State, if:
(a) that person leaves the territory of the Requesting State after extradition and voluntarily returns to it; or

(b) that person does not leave the territory of the Requesting State within 10 days of the day on which that person is free to leave.

Article 15

Waiver of Extradition

If the person sought consents to surrender to the Requesting State, the Requested State may surrender the person as expeditiously as possible without further proceedings.

Article 16

Transit

1. Either Contracting State may authorize transportation through its territory of a person surrendered to the other State by a third State. A request for transit shall be transmitted through the diplomatic channel or directly between the Department of Justice in the United States and the Attorney General in Barbados. Such a request may also be transmitted through the facilities of the International Criminal Police Organization (INTERPOL), or through such other means as may be settled by arrangement between the Contracting States. It shall contain a description of the person being transported and a brief statement of the facts of the case. A person in transit may be detained in custody during the period of transit.

2. No authorization is required where air transportation is used and no landing is scheduled on the territory of the Contracting State. If an unscheduled landing occurs on the territory of the other Contracting State, the other Contracting State may require the request for transit as provided in paragraph 1. That Contracting State may detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.

Article 17

Representation and Expenses

1. The Requested State shall advise, assist, appear in court on behalf of the Requesting State, and represent the interests of the Requesting State, in any proceedings arising out of a request for extradition.

2. The Requesting State shall bear the expenses related to the translation of documents and the transportation of the person surrendered. The Requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings.

3. Neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought under this Treaty.

Article 18

Consultation

The Department of Justice of the United States and the Attorney General of Barbados may consult with each other directly in connection with the processing of individual cases and in furtherance of maintaining and improving procedures for the implementation of this Treaty.

Article 19

Application

This Treaty shall apply to offenses committed before as well as after the date it enters into force.

Article 20

Ratification and Entry into Force

1. This Treaty shall be subject to ratification; the instruments of ratification shall be exchanged at Washington as soon as possible.

2. This Treaty shall enter into force upon the exchange of the instruments of ratification.

3. Upon the entry into force of this Treaty, the Treaty on Extradition signed at London December 22, 1931, shall cease to have any effect between the United States and Barbados. Nevertheless, the prior Treaty shall apply to any extradition proceedings in which the extradition documents have already been submitted to the courts of the Requested State at the time this Treaty enters into force, except that Article 15 of this Treaty shall be applicable to such proceedings. Article 14 of this Treaty shall apply to persons found extraditable under the prior Treaty.

Article 21

Termination

Either Contracting State may terminate this Treaty at any time by giving written notice to the other Contracting State, and the termination shall be effective six months after the date of receipt of such notice.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments have signed this Treaty.

DONE at Bridgetown, in duplicate, this 28th day of February, 1996.

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:

FOR THE GOVERNMENT OF BARBADOS:

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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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Bahamas Extradition Treaty with the United States

April 5, 2011

Bahamas International Extradition Treaty with the United States

March 9, 1990, Date-Signed

September 22, 1994, Date-In-Force

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

102D CONGRESS

SENATE

LETTER OF TRANSMITTAL

THE WHITE HOUSE, October 28, 1991.

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 Government of the United States of America and the Government of the Commonwealth of The Bahamas signed at Nassau on March 9, 1990. I transmit also, for the information of the Senate, the report of the Department of State with respect to the Treaty.

The Treaty is designed to update and standardize the conditions and procedures for extradition between the United States and The Bahamas. Most significant, it substitutes a dual criminality clause for a current list of extraditable offenses, so that, inter alia, certain additional narcotics offenses will be covered by the new Treaty. The Treaty also provides a legal basis for temporarily surrendering prisoners to stand trial for crimes against the laws of the Requesting State.

The Treaty further represents an important step in combating terrorism by excluding from the scope of the political offense exception serious offenses typically committed by terrorists; e.g., crimes against a Head of State or first family member of either Party, aircraft hijacking, aircraft sabotage, crimes against internationally protected persons, including diplomats, hostage-taking, narcotics trafficking, and other offenses for which either the United States or The Bahamas may have an obligation to extradite or submit to prosecution by reason of a multilateral treaty, convention, or other international agreement.

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States. Upon entry into force, it will supersede the existing Extradition Treaty between the United States and The Bahamas.

This Treaty will make a significant contribution to international cooperation in law enforcement. I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.

GEORGE BUSH.

LETTER OF SUBMITTAL

DEPARTMENT OF STATE,

Washington, DC, September 19, 1991.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Extradition Treaty between the Government of the United States of America and the Government of the Commonwealth of The Bahamas signed at Nassau on March 9, 1990. I recommend that this Treaty be transmitted to the Senate for advice and consent to ratification.

The Treaty follows generally the form and content of extradition treaties recently concluded by the United States. It represents a concerted effort by the Department of State and the Department of Justice to modernize the legal tools available for the extradition of serious offenders such as narcotics traffickers and terrorists.

Upon entry into force, this Treaty will supersede the Extradition Treaty between the United States of America and Great Britain, signed at London December 22, 1931, and continued in force between the United States and The Bahamas by an exchange of notes done at Nassau and Washington March 7, June 19 and August 17, 1978.

Article 1 obligates each State to extradite to the other, in accordance with the provisions of the Treaty, any persons who are charged with, or have been found guilty of, an extraditable offense.

Article 2 adopts a dual criminality approach in determining whether a particular offense is extraditable, replacing the list of extraditable offenses contained in the 1931 Treaty currently in force. This modern extradition practice emphasizes extradition based on underlying criminal conduct rather than the particular designation of the offense contained in our respective criminal codes. A dual criminality clause permits extradition for any conduct that is punishable in both States by imprisonment or other detention for at least one year. Inclusion of a dual criminality clause obviates the need to renegotiate or supplement the Treaty as offenses, such as computer-related crimes or money laundering, become punishable under the laws of both States.

An offense is further extraditable under Article 2(3) notwithstanding any interstate transportation or mail-use elements required to establish U.S. Federal jurisdiction. This provision will allow the United States to obtain extradition for such offenses even though the Bahamian laws do not include analogous jurisdictional elements for similar underlying criminal behavior. Extraterritorial offenses are extraditable so long as the law of the Requested State provides for extraterritorial jurisdiction under similar circumstances.

Article 2 further requires extradition for any unlawful participation in a crime including attempt, conspiracy, aiding, abetting, counselling, causing, procuring and accessory.

Article 3 incorporates a political offense exception similar to provisions contained in extradition treaties concluded in recent years with a number of other countries. It provides a mandatory ground to deny extradition for an offense of a political character. It expressly excludes from the reach of such exception any offense for which either the United States or The Bahamas has an international treaty obligation to extradite the person or submit the case for prosecution; e.g., aircraft hijacking pursuant to The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague December 16, 1970, and entered into force October 14, 1971, (22 U.S.T. 1641; TIAS 7192), aircraft sabotage pursuant to the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal September 23, 1971, and entered into force January 26, 1973, (24 U.S.T. 564; TIAS 7570); crimes against internationally protected persons, including diplomats, under the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, done at New York December 14, 1973 (20 U.S.T. 1975; TIAS 8532), and entered into force February 20, 1977; hostage taking, pursuant to the International Convention against the Taking of Hostages, done at New York on December 17, 1979, which entered into force June 3, 1983, and for the United States January 6, 1985 (TIAS 11081); and narcotics trafficking under the United Nations Convention against Illicit Traffic in Narcotics Drugs and Psychotropic Substances, done at Vienna December 20, 1988, and entered into force November 11, 1990. This limitation will also extend to crimes similarly defined in future multilateral treaties; e.g., maritime terrorism under the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome March 10, 1988; the United States intends to deposit its instrument of ratification upon the enactment of implementing legislation.

The Article likewise excludes from the reach of the political offense exception a murder or other willful crime against the life or physical integrity of a Head of State of a Contracting State or a member of that person’s family.

Article 3 further mandates the denial of extradition whenever the executive authority of the Requested State determines that the request was politically or racially motivated or that it was made for the primary purpose of prosecuting or punishing the person for an offense of a political character. Finally, Article 3 sets forth a discretionary basis for refusing extradition for offenses under military law which are not offenses under criminal law.

Article 4 precludes the refusal of extradition on the basis of the nationality of the fugitive.

Article 5 bars extradition on the basis of double jeopardy when the person sought has been convicted or acquitted for the same offense in the Requested State, but does not bar extradition if the competent authorities in the Requested State have declined to prosecute or have decided to discontinue criminal proceedings.

Article 6 mandates the denial of extradition if prosecution is barred by the statute of limitation of the Requesting State, without regard to the corresponding statute of limitation in the Requested State.

Article 7 permits the Requested State to deny extradition for capital offenses, other than murder, which are not punishable by death in the Requested State, if the Requesting State fails to provide sufficient assurance that the death penalty will not be imposed or carried out.

Article 8 specifies the procedures by which extradition is to be accomplished. The procedures provided therein are similar to those found in other modern extradition treaties.

Article 9 provides for the submission of additional information whenever the Requested State considers the information provided with the request to be insufficient. It requires that State to seek such additional information and enables the Requesting State to obtain a reasonable extension of time to obtain and transmit the supplemental information in order to cure any defects found by either the court or the government authorities in the Requested State.

Article 10 provides for the provisional arrest and detention of a fugitive for no more than 60 days pending receipt of a fully documented extradition request in conformance with Article 8. The discharge of a fugitive from custody does not prejudice subsequent rearrest and extradition upon later receipt of the extradition request and supporting documents.

Article 11 requires the Requested State to promptly notify the Requesting State of its decision on extradition and, if denied in whole or in part, to provide an explanation. If granted, the fugitive must be removed from the territory of the Requested State within the time proscribed by the law of the Requested State.

Article 12 allows the Requested State to defer surrender of a fugitive being proceeded against or serving a sentence in its territory until the conclusion of the proceedings and the full execution of any punishment. Under this provision the Requested State has the discretion to choose to surrender the fugitive temporarily to the Requesting State while he is still serving a prison sentence in the Requested State for the sole purpose of early prosecution in the Requesting State. This provision will allow a person serving a long sentence in the Requested State to be tried promptly in the Requesting State and to be returned to the Requested State to complete his sentence. This alternative of temporary surrender is routinely included in our modern extradition treaties.

Article 13 sets forth a non-exclusive list of factors to be considered by the Requested State in determining to which State to surrender a person sought by more than one State.

Article 14 expressly incorporates into the Treaty the rule of speciality. This article provides, subject to specific exceptions, that a person extradited under the Treaty may not be detained, tried, or punished for an offense other than that for which extradition has been granted, unless a waiver of the rule is granted by the executive authority of the Requested State or unless the person extradited fails to leave the Requesting State within thirty days of being free to do so or, having left the Requesting State, voluntarily returns to it. Similarly the Requesting State may not extradite the individual to a third state unless that individual consents or remains after thirty days or leaves and voluntarily returns.

Article 15 permits surrender without formal proceedings where the person sought agrees in writing to surrender after having been advised by a competent judicial authority of his or her right to a formal proceeding.

Article 16 provides for the seizure and surrender to the Requesting State of all property related to the offense for which extradition is requested. This obligation is subject to the rights to third parties.

Article 17 governs the transit through the territory of one of the Contracting States of a person being surrendered to the other Contracting State by a third State.

Article 18 provides that the Requested State shall represent the Requesting State in any proceedings in the Requested State arising out of a request for extradition and bear all costs other those arising out of the translation of documents and transportation of the fugitive.

Article 19, like the parallel provision in almost all recent United States extradition treaties, stipulates that the Treaty is retroactive, in the sense that it applies to offenses committee before as well as after its entry into force, provided the offense was an offense under the laws of both Contracting States at the time of its commission.

Article 20 provides that the Treaty will enter into force upon the exchange of instruments of ratification. Upon entry into force, this Treaty will supersede, between the United States and The Bahamas, the Extradition Treaty between the United States of America and Great Britain signed on December 22, 1931 and continued in force between The Bahamas and the United States by an exchange of notes done on March 7, June 19 and August 17, 1978. It further provides for denunciation of the Treaty by either Party upon six months written notice to the other.

A Technical Analysis explaining in detail the provisions of the Treaty is being prepared by the United States negotiating delegation and will be submitted separately to the Senate Committee on Foreign Relations.

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

Respectfully submitted,

LAWRENCE EAGLEBURGER.

Enclosure: As stated.

EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE COMMONWEALTH OF THE BAHAMAS

The Government of the United States of America and the Government of the Commonwealth of The Bahamas:

Recalling the Treaty for the Mutual Extradition of Criminals between the United States of America and Great Britain, signed at London December 22, 1931;

Noting that both the Government of the United States of America and the Government of the Commonwealth of The Bahamas currently apply the terms of that Treaty; and

Desiring to provide for more effective cooperation between the two States in the suppression of crime, and, for that purpose, to conclude a new treaty for the extradition of offenders;

Have agreed as follows:

Article 1

Obligation to Extradite

The Contracting States agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the authorities in the Requesting State have charged with or found guilty of an extraditable offense.

Article 2

Extraditable Offenses

(1) An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty for a period of more than one year or by a more severe penalty.

(2) An offense shall also be an extraditable offense if it consists of an attempt or a conspiracy to commit, aiding or abetting, counselling, causing or procuring the commission of, or being an accessory before or after the fact to, an offense described in paragraph 1.

(3) For the purposes of this Article, an offense shall be an extraditable offense:

(a) whether or not the laws in the Contracting States place the offense within the same category of offenses or describe the offense by the same terminology; or

(b) whether or not the offense is one for which United States federal law requires the showing of interstate transportation, or use of the mails or other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court.

(4) An offense described in this Article shall be an extraditable offense whether or not the offense was committed within the territory of the Requesting State. However, if the offense was committed outside the territory of the Requesting State, extradition shall be granted if the law of the Requested State provides for punishment of an offense committed outside of its territory in similar circumstances.

Article 3

Political and Military Offenses

(1) Extradition shall not be granted when:

(a) the offense for which extradition is requested is an offense of a political character;

(b) the executive authority of the Requested State determines that the request was made for the primary purpose of prosecuting or punishing the person for an offense of a political character; or

(c) the executive authority of the Requested State determines that the request was politically or racially motivated.

(2) For the purposes of this Treaty, the following offenses shall not be considered to be offenses of a political character within the meaning of paragraph (1) of this Article:

(a) a murder or other willful crime against the life or physical integrity of a Head of State of one of the Contracting States, or of a member of that person’s family, including attempts to commit such offenses; or

(b) an offense with respect to which a Contracting State has the obligation to prosecute or grant extradition to the other by reason of a multilateral treaty, convention, or other international agreement.

(3) The executive authority of the Requested State may refuse extradition for offenses under military law which are not offenses under ordinary criminal law.

Article 4

Nationality

Extradition shall not be refused on the ground that the fugitive is a citizen or national of the Requested State.

Article 5

Prior Jeopardy for the Same Offense

(1) 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.

(2) Extradition shall not be precluded by the fact that the competent authorities in the Requested State have decided not to prosecute the person sought for the acts for which extradition is requested, or to discontinue any criminal proceedings which have been instituted against the person sought for those acts.

Article 6

Lapse of Time

Extradition shall not be granted when all prosecution has become barred by lapse of time according to the laws in the Requesting State.

Article 7

Capital Punishment

When the offense for which extradition is sought is punishable by death under the laws in the Requesting State and is not punishable by death under the laws in the Requested State, the competent authority of the Requested State may refuse extradition unless:

(a) the offense constitutes murder under the laws in the Requested State; or

(b) the competent authority of the Requesting State provides such assurances as the competent authority of the Requested State considers sufficient that the death penalty will not be imposed or, if imposed, will not be carried out.

Article 8

Extradition Procedures and Required Documents

(1) The requests for extradition shall be made through the diplomatic channel.

(2) The requests for extradition shall be supported by:

(a) documents, statements, or other evidence which describe the identity, and probable location of the person sought;

(b) a statement of the facts of the case, including, if possible, the time and location of the offense;

(c) a statement of the provisions of the law describing the essential elements of the offense for which extradition is requested;

(d) a statement of the provisions of law describing the punishment for the offense; and

(e) a statement of the provisions of law describing any time limit on the prosecution.

(3) A request for extradition relating to a person who has not yet been convicted of the offense for which extradition is sought shall also be supported by:

(a) a copy of the warrant of arrest issued by a judge or other competent authority together with evidence that the person requested is the person to whom the warrant refers; and;

(b) such evidence as would justify the committal for trial of the person if the offense had been committed in the Requested State or as would justify the committal for extradition of the person in accordance with the laws of the Requested State.

(4) A request for extradition relating to a person convicted of the offense for which extradition is sought shall be supported by the items in paragraph (2) above, and shall also be supported by a certificate of conviction or a copy of the judgment of conviction rendered by a court in the Requesting State. If the person has been convicted and sentenced, the request for extradition shall be supported by a statement showing to what extent the sentence has been carried out. If the person has been convicted but not yet sentenced, the request for extradition shall be supported by a statement to that effect.

(5) All documents submitted by the Requesting State shall be submitted in the English language.

(6) Documents in support of the request for extradition shall be transmitted through the diplomatic channel, and shall be admissible in extradition proceedings if certified or authenticated in such manner as may be required by the law in the Requested State.

Article 9

Additional Information

(1) If the executive authority of the Requested State considers that the information furnished in support of the request for extradition is not sufficient to fulfill the requirements of the Treaty, it shall request the submission of necessary additional information.

(2) The executive authority of the Requested State may fix a time limit for the submission of such information.

(3) Nothing in the foregoing shall prevent the executive authority of the Requested State from presenting to a court of that State information or evidence sought or obtained after the expiration of the time stipulated pursuant to this Article.

Article 10

Provisional Arrest

(1) In case of urgency, either Contracting State may request the provisional arrest of any person accused or convicted of an extraditable offense. Application for provisional arrest shall be made through the diplomatic channel, or directly between the Department of Justice in the United States of America and the Attorney General in the Commonwealth of The Bahamas, in which case the facilities of the International Criminal Police Organization (INTERPOL) may be used.

(2) The application for provisional arrest shall contain:

(a) a description of the person sought;

(b) the location of the person sought, if known;

(c) a brief statement of the facts of the case, including, if possible, the time and location of the offense;

(d) a statement of the existence of a warrant of arrest or the judgment of conviction against the person sought; and

(e) a statement that a request for extradition for the person sought will follow.

(3) On receipt of the application, the Requesting State shall take the appropriate steps to secure the arrest of the person sought. The Requesting State shall be promptly notified of the results of its application.

(4) A person who is provisionally arrested shall be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to the application of the Requesting State if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 8.

(5) The fact that the person sought has been discharged from custody pursuant to paragraph (4) of this Article shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are delivered at a later date.

Article 11

Decision and Surrender

(1) The Requested State shall promptly communicate through the diplomatic channel to the Requesting State its decision on the request for extradition.

(2) If the request is denied in whole or in part, the Requested State shall provide such information as may be available as to the reasons for the denial of the request.

(3) If the request for extradition is granted, the competent authorities of the Contracting States shall agree on the time and place for the surrender of the person sought.

(4) If the person sought is not removed from the territory of the Requested State within the time prescribed by the law of that State, that person may be discharged from custody, and the Requested State may subsequently refuse extradition for the same offense.

Article 12

Deferred and Temporary Surrender

1. If the extradition request is granted in the case of a person who is being prosecuted in the Requested State, the Requested State shall, unless its laws otherwise provide, defer the surrender of the person sought until the conviction, acquittal, or termination of the prosecution against that person.

2. If the extradition request is granted in the case of a person who is serving a sentence in the Requested State, not being a person to whom paragraph 1 applies, the Requested State may defer the surrender of the person sought until the full execution of any punishment that may have been imposed.

3. If the extradition request is granted in the case of a person who is serving a sentence in the Requested State, not being a person to whom paragraph 1 applies, the Requested State may temporarily surrender the person sought to the Requesting State for the purpose of prosecution for the offense(s) for which he was committed for extradition. The person so surrendered shall be kept in custody in the Requesting State and shall be returned to the Requested State after the conclusion of the prosecution against that person, in accordance with conditions to be determined by agreement of the Contracting States.

Article 13

Requests for Extradition Made by Several States

(1) If the Requested State receives requests from the other Contracting State and from any other State or States for the extradition of the same person, either for the same offense or for different offenses, the executive authority of the Requested State shall determine to which State it will surrender the person. In making its decision, the Requested State shall consider all relevant factors, including but not limited to:

(a) the State in which the offense was committed;

(b) the gravity of the offenses, if the States are seeking the person for different offenses;

(c) the nationality of the offender;

(d) the possibility of re-extradition between the Requesting States; and

(e) the chronological order in which the requests were received from the Requesting States.

Article 14

Rule of Speciality

(1) A person extradited under this Treaty may only be detained, tried, or punished in the Requesting State for the offense for which extradition was granted, or–

(a) any offense committed after the extradition;

(b) any offense in respect of which the executive authority of the Requested State, in accordance with its laws, has consented to the person’s detention, trial, or punishment; and for the purposes of this subparagraph the Requested State shall require compliance with the extradition procedures specified in Article 8 and the submission of the documents specified in that Article;

(c) any offense which is a lesser offense proven by the facts before the court of committal; or

(d) any offense dealt with by the Requesting State after–

(i) the person failed to leave the territory of the Requesting State within thirty (30) days of being free to do so; or

(ii) the person has left the territory of the Requesting State and voluntarily returned to it.

(2) A person extradited under this treaty may only be extradited to a third State if–

(a) the Requested State consents; or

(b) the circumstances are such that the person could be dealt with in the Requesting State pursuant to subparagraph (d) of paragraph (1).

Article 15

Simplified Extradition

If the person sought agrees in writing to be surrendered to the Requesting State after being advised by a competent judicial authority of his right to formal extradition proceedings, the Requested State may surrender the person without formal proceedings.

Article 16

Seizure and Surrender of Property

(1) To the extent permitted under the laws of the Requested State, all articles, instruments, objects of value, documents, or other evidence relating to the offense shall be seized by the Requested State, and such items shall be surrendered upon the granting of extradition. The items mentioned in this Article shall be surrendered even when extradition cannot be effected due to the death, disappearance, or escape of the person sought.

(2) The Requested State may condition the surrender of the property upon satisfactory assurance from the Requesting State that the property will be returned to the Requested State as soon as practicable, and may defer surrender if the property is needed as evidence in the Requested State.

(3) The rights of third parties in such property shall be duly respected.

Article 17

Transit

(1) Either Contracting State may authorize transportation through its territory of a person surrendered to the other State by a third State. A request for transit shall be made through the diplomatic channel and shall contain a description of the person being transported and a brief statement of the facts of the case.

(2) No authorization is required where air transportation is used and no landing is scheduled on the territory of the Contracting State. If an unscheduled landing occurs on the territory of the other Contracting State, transit shall be subject to paragraph (1) of this Article. That Contracting State shall detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.

Article 18

Representation and Expenses

(1) The Requested State shall advise, assist, appear in court on behalf of the Requesting State, and represent the interests of the Requesting State, in any proceeding arising out of a request for extradition. However, if the Requesting State retains counsel, no claim for reimbursement shall be made against the Requested State for that counsel’s fees.

(2) The Requesting State shall bear the expenses related to the translation of documents and the transportation of the person surrendered. The Requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings.

(3) Neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought under this Treaty.

Article 19

Scope of Application

This Treaty shall apply to extraditable offenses under this Treaty committed before as well as after the date this Treaty enters into force provided that extradition shall not be granted for an offense committed before this Treaty enters into force which was not an offense under the laws of both Contracting States at the time of its commission.

Article 20

Ratification, Entry Into Force, and Termination

(1) This Treaty shall be subject to ratification, and the instruments of ratification shall be exchanged at Washington as soon as possible.

(2) This Treaty shall enter into force immediately upon the exchange of the instruments of ratification.

(3) Either Contracting State may terminate this Treaty at any time by giving written notice to the other Contracting State, and the termination shall be effective six months after the date of the receipt of such notice. Such termination shall not prejudice any request for extradition made prior to the date on which the termination becomes effective.

(4) Upon the entry into force of this Treaty, the Extradition Treaty between the United States of America and Great Britain, signed at London December 22, 1931, shall cease to have effect between the United States of America and the Commonwealth of The Bahamas. Nevertheless, the 1931 Treaty shall continue to have effect in relation to any extradition proceedings pending when this Treaty enters into force.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Treaty.

DONE, in duplicate, at the city of Nassau, this 9th day of March, 1990.

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:

FOR THE GOVERNMENT OF THE COMMONWEALTH OF THE BAHAMAS:

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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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Austria Extradition Treaty with the United States

April 4, 2011

Austria International Extradition Treaty with the United States

January 8, 1998, Date-Signed

January 1, 2000, Date-In-Force

Message from the President of the United States

105TH CONGRESS

2d Session

SENATE

LETTER OF TRANSMITTAL

THE WHITE HOUSE, June 11, 1998.

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 Government of the United States of America and the Government of the Republic of Austria, signed at Washington on January 8, 1998.

In addition, I transmit, for the information of the Senate, the report of the Department of State with respect to the Treaty. As the report explains, the Treaty will not require implementing legislation.

This Treaty will, upon entry into force, enhance cooperation between the law enforcement communities of both countries. It will thereby make a significant contribution to international law enforcement efforts. This Treaty will supersede and significantly improve upon the Treaty between the Government of the United States and the Government of Austria for the extradition of fugitives from justice, signed at Vienna on January 31, 1930, and the Supplementary Extradition Convention signed at Vienna on May 19, 1934.

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States.

I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.

WILLIAM J. CLINTON.

LETTER OF SUBMITTAL

DEPARTMENT OF STATE,

Washington, May 11, 1998.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Extradition Treaty between the Government of the United States of America and the Government of the Republic of Austria (“the Treaty”), signed in Washington on January 8, 1998. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification.

The Treaty follows closely the form and content of extradition treaties recently concluded by the United States in most respects. The Treaty represents part of a concerted effort by the Department of State and the Department of Justice to develop modern extradition relationships to enhance the United States’ ability to prosecute serious offenders including, especially, narcotics traffickers and terrorists.

The Treaty marks a significant step in bilateral cooperation between the United States and Austria. Upon entry into force, it will replace the Treaty between the Government of the United States and the Government of Austria for the extradition of fugitives from justice, signed at Vienna on January 31, 1930, and the Supplementary Extradition Convention signed at Vienna on May 19, 1934. Those treaties have become outmoded, and the new Treaty will provide significant improvements. The Treaty does not require implementing legislation.

Article 1 obligates each Party to extradite to the other, pursuant to the provisions of the Treaty, any person whom the Authorities in the Requesting State have charged with or found guilty of an extraditable offense.

Article 2(1) defines an extraditable offense as one punishable under the laws in both Parties by deprivation of liberty for a maximum period of more than one year or by a more severe penalty. Use of such a “dual criminality” clause rather than a list of offenses covered by the Treaty obviates the need to renegotiate or supplement the Treaty as additional offenses become punishable under the laws of both Parties.

Article 2(2) provides that if extradition is sought for the enforcement of a prison sentence or a preventive measure restricting liberty ordered by a criminal court for an extraditable offense, it shall be granted only if at least three months of the sentence or preventive measure remain to be served.

Article 2(3) provides that, if extradition has been granted pursuant to paragraph 1 or 2, it shall also be granted for any other offense requested, provided that all other requirements for extradition are met.

Article 2(4) provides flexibility to enable extradition in three specific situations. An offense is to be considered an extraditable offense:

(A) whether or not the laws in the Parties place the offense within the same category of offenses or describe the offense by the same terminology;

(B) in criminal cases relating to taxes, customs duties, currency control, and import and export of commodities, whether or not the laws of the Parties provide for the same kinds of taxes or customs duties, or controls on currency or on the import or export of the same kinds of commodities; or

(C) 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 merely for the purpose of establishing jurisdiction in a United States federal court.

Article 2(5) specifies that an extraditable offense also includes an attempt to commit or a conspiracy to commit, or participation in the commission of, an offense.

With regard to offenses committed outside the territory of the Requesting State, Article 2(6) provides that extradition may be granted for an extraditable offense regardless of where it was committed. Many United States criminal statutes have extraterritorial application, and the United States frequently makes requests for fugitives whose criminal activity occurred in foreign countries with the intent, actual or implied, of affecting the United States. Austrian criminal law also has broad jurisdictional scope, containing provisions to enable prosecution of Austrian nationals for offenses committed in other countries under certain circumstances.

Article 3(1) provides that neither Party is required to extradite its nationals, but the Executive Authority of the Requested State has the discretionary power to do so, so long as the law of the Requested State does not preclude such extradition. Under Article 3(2), if extradition is refused solely on the basis of the nationality of the person sought, the Requested State must, at the request of the Requesting State, submit the case for domestic prosecution.

As is customary in extradition treaties, Article 4 incorporates a political and military offenses exception to the obligation to extradite. Article 4(1) states generally that extradition shall not be granted for a political offense. Article 4(2) specifies several categories of offenses that shall not be considered to be political offenses:

(A) murder;

(B) any other willful crime against the person of a Head of State of one of the Parties, or of a member of the Head of State’s family; and

(C) an offense for which both Parties are obliged pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their competent authorities for a decision as to prosecution.

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) permits the Requested State to deny extradition for military offenses that are not offenses under ordinary criminal law (for example, desertion).

Article 5 provides that extradition may be refused if the person sought is proceeded against in the Requested State for the same offense. Article 5(2), however, declares that extradition may be granted if the competent authorities in the Requested State have declined to prosecute for the offenses for which extradition is requested or have decided to discontinue criminal proceedings against the person sought for those acts.

Article 6(1) precludes extradition of a person who has been convicted or discharged with final and binding effect by the competent authorities in the Requested State for the offense for which extradition is requested. Article 6(2) clarifies that an acquittal or a discharge for lack of jurisdiction is not an obstacle to extradition, however.

Article 7 provides that extradition shall not be granted when prosecution or execution of a sentence has become barred by the statute of limitations of the Requesting State.

Article 8(1) permits the Requested State to refuse extradition when an offense is punishable by death under the laws in the Requesting State but not under the laws of the Requested State, unless the Requesting State provides the assurance that the death penalty will not be imposed or, if imposed, will not be carried out.

Article 8(2) declares that the death penalty, if imposed by the courts of the Requesting State, shall not be carried out in cases where the Requesting State has provided an assurance in accordance with Article 8(1).

Article 9 states that extradition may be refused for a person who has been found guilty in absentia, unless the Requesting State supplies assurances that the person has had or will be given an adequate opportunity to present a defense, or that there are adequate remedies or additional proceedings available to the person after surrender.

Article 10 establishes the procedures and describes the documents that are required to support an extradition request. Article 10(1) requires that all requests be submitted through the diplomatic channel. Article 10(3)(c) provides that a request for the extradition of a person sought for prosecution be supported by evidence providing a reasonable basis to believe that the person committed the offense for which extradition is requested and is the person named in the arrest.

Article 11 enables a Requested State to seek from the Requesting State supplementary information necessary to meet the requirements for extradition and to permit courts to grant a reasonable continuance in order to allow the request to be fulfilled.

Article 12 requires that, unless otherwise agreed, all documents submitted by the Requesting State be translated into the language of the Requested State.

Article 13 sets forth procedures for the provisional arrest of a person sought pending presentation of the formal request for extradition. Article 13(4) provides that if the Requested State’s executive authority has not received the request for extradition and required supporting documentation within sixty (60) days after the provisional arrest, the person may be discharged from custody. Article 13(5) provides explicitly that discharge from custody pursuant to Article 13(4) does not prejudice subsequent rearrest and extradition of that person upon later delivery of the extradition request and supporting documents.

Article 14 specifies the procedures governing surrender and return of persons sought. Article 14(1) requires the Requested State to provide prompt notice to the Requesting State regarding its decision on the request for extradition, and, if the request is denied in whole or in part, to provide an explanation of the reasons. If extradition is granted, the authorities of the Contracting Parties shall decide on the time and place for the surrender of the person sought. Article 14(3) provides that the person sought must be removed from the territory of the Requested State within the time prescribed by its law or, if the law does not provide a specific time for surrender, as is the case in Austria, within a reasonable period of time to be determined by the Requested State. In such cases the Requested State may subsequently refuse extradition for the same offense. Article 14(4) provides an additional safeguard by allowing a Contracting Party to postpone surrender if compelled by circumstances beyond its control.

Article 15 concerns postponed and deferred surrender. Article 15(1) provides that the Requested State may postpone the surrender of a person whose extradition has been granted if the person is being proceeded against or is serving a sentence in the Requested State. Alternatively, subparagraph (2) enables the Requested State temporarily to surrender such a person to the Requesting State solely for the purpose of prosecution, subject to return to the Requested State thereafter, in accordance with conditions determined by the Contracting Parties.

Article 16 complements Article 15 by expressly permitting the Requested State to defer the initiation of extradition proceedings until after a prosecution in that State has been concluded. Article 17(1) sets forth a non-exclusive list of factors to be considered by the Requested State in determining to which State to surrender a person sought by more than one State. Article 17(2) provides that the Requested State, if it gives precedence to another State, to report to the Requesting State on the extent to which it waives the rule of specialty with respect to possible further extradition.

Article 18(1) provides for the seizure and surrender to the Requesting State of property connected with the offense for which extradition is granted, to the extent permitted under the law of the Requested State. Such property may be surrendered even when extradition cannot be effected due to the death, disappearance, or escape of the person sought. In accordance with Article 18(2), surrender of property may be deferred if it is needed as evidence in the Requested State and may be conditioned upon satisfactory assurances that it will be returned. Article 18(3) imposes an obligation to respect the rights of third parties in affected property. Article 18(4) makes inapplicable to the surrender of such items any restrictive regulations concerning the import and export of articles and foreign currency, thereby removing a potential obstacle under Austria’s currency control regulations.

Article 19 sets forth the rule of speciality. Article 19(1) provides, subject to specific exceptions, that a person extradited under the Treaty may not be detained, tried, punished, or subjected to any other restriction on his personal liberty in the Requesting State in relation to an offense committed prior to extradition other than that for which extradition has been granted, unless a waiver of the rule is granted by the executive authority of the Requested State. Similarly, under Article 19(2), the Requesting State may not extradite such person to a third state for an offense committed prior to the original surrender unless the surrendering State consents. However, Article 19(3) makes clear that these restrictions do not apply if the extradited person leaves the Requesting State after extradition and voluntarily returns to it or fails to leave the Requesting State within thirty days of being free to do so. Article 19(4) stipulates that the rule of specialty shall not operate to prevent the Requesting State from taking measures necessary under its law to effect deportation of the extradited person from its territory or to file charges against the person solely to preclude expiration of the statute of limitations.

Article 20 permits surrender to the Requesting State without further proceedings if the person sought consents. The Rule of Specialty set out in Article 19 will not apply to a waiver.

Article 21 governs the transit through the territory of one Party of a person being surrendered to the other State by a third State.

Article 22 contains provisions on representation and expenses that are similar to those found in other modern extradition treaties. Specifically, the Requested State is required to represent the interests of the Requesting State in any proceedings arising out of a request for extradition. The Requesting State is required to bear the expenses related to the translation of documents and the transportation of the person surrendered. Article 22(3) clarifies that neither State shall make any pecuniary claim against the other State arising out of extradition procedures under the Treaty.

Article 23 states that the United States Department of Justice and the Ministry of Justice of Austria may consult with each other directly in connection with the processing of individual cases and in furtherance of maintaining and improving Treaty implementation procedures.

Article 24, like the parallel provision in almost all recent United States extradition treaties, states that the Treaty shall apply to offenses committed before as well as after the date the Treaty enters into force. Ratification and entry into force are addressed in Article 25. That Article provides that the Parties shall exchange instruments of ratification at Washington and that the treaty shall enter into force on the first day of the third month after the exchange of instruments of ratification. Upon entry into force of this Treaty, the Treaty between the Government of the United States and the Government of Austria for the extradition of fugitives from justice, signed at Vienna on January 31, 1930, and the Supplementary Extradition Convention signed at Vienna on May 19, 1934, shall cease to have effect, with certain noted exceptions.

Under Article 26, either Party may terminate the Treaty at any time upon written notice to the other Party, with termination to become effective six months after the date of receipt of such notice.

A Technical Analysis explaining in detail the provisions of the Treaty is being prepared by the United States negotiating delegation and will be submitted separately to the Senate Committee on Foreign Relations.

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

Respectfully submitted.

STROBE TALBOT.

EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA

The Government of the United States of America and the Government of the Republic of Austria, Recalling the Convention between Austria and the United States of America for the extradition of fugitives from justice, and exchange of notes concerning the death penalty, signed at Vienna, January 31, 1930, and the Supplementary Convention thereto signed at Vienna, May 19, 1934;

Noting that both the United States of America and the Republic of Austria currently apply the terms of that Treaty;

Desiring to provide for more effective cooperation between the two States in the suppression of crime and, for that purpose, to conclude a new Treaty for the extradition of offenders;

Have agreed as follows:

ARTICLE 1

OBLIGATION TO EXTRADITE

The Contracting Parties agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the authorities in the Requesting State have charged with or found guilty of an extraditable offense.

ARTICLE 2

EXTRADITABLE OFFENSES

1. Extradition shall be granted for offenses which are subject under the laws in both Contracting Parties by deprivation of liberty for a period of more than one year or by a more severe penalty.

2. Extradition for the enforcement of a prison sentence or a preventive measure restricting liberty ordered by a criminal court for one or more of the offenses referred to in paragraph 1 shall be granted only if at least three months of the sentence or a preventive measure remain to be served.

3. If extradition has been granted pursuant to paragraph 1 or 2, it shall also be granted for any other offenses even if the time conditions established in those paragraphs do not apply, provided that all other requirements for extradition are met.

4. For the purposes of this article, extradition shall be granted:

(A) whether or not the laws in the Contracting States place the offense within the same category of offenses or describe the offense by the same terminology;

(B) in criminal cases relating to taxes, customs duties, currency control, and import and export of commodities, whether or not the laws of the Contracting States provide for the same kinds of taxes or customs duties, or controls on currency or on the import or export of the same kinds of commodities; and

(C) 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 merely for the purpose of establishing jurisdiction in a United States Federal court.

5. Subject to the conditions set out in paragraph 1, an offense shall also be an extraditable offense if it consists of an attempt or a conspiracy to commit, or participation in the commission of, an offense.

6. Extradition may be granted for an extraditable offense regardless of where the act or acts constituting the offense were committed.

ARTICLE 3

NATIONALITY

1. Neither Party shall be bound to extradite its own nationals, but the executive authority of the Requested State shall have the power to extradite such persons if, in its discretion, it be deemed proper to do so and provided the law of the Requested State does not so preclude.

2. If extradition is refused solely on the basis of the nationality of the person sought, the Requested State shall, at the request of the Requesting State, submit the case to its authorities for prosecution.

ARTICLE 4

POLITICAL AND MILITARY OFFENSES

1. Extradition shall not be granted if the offense for which extradition is requested is a political offense.

2. For the purposes of this Treaty, the following offenses shall not be considered to be political offenses:

(A) murder;

(B) any other willful crime against the person of a Head of State of one of the Contracting States, or of a member of the Head of State’s family; and

(C) an offense for which both Contracting States 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.

3. Extradition shall not be granted if the executive authority of the Requested State determines that the request was politically motivated.

4. The Requested State may refuse extradition for offenses under military law which are not offenses under ordinary criminal law.

ARTICLE 5

JURISDICTION OF THE REQUESTED STATE

1. Extradition may be refused if the person sought is proceeded against in the Requested State for the offense for which extradition is requested.

2. Notwithstanding paragraph 1, extradition may be granted if the competent authorities of the Requested Stated have decided not to prosecute the person sought for the offense for which extradition is requested or decided to discontinue any criminal proceedings which have been initiated against the person for those acts.

ARTICLE 6

NON BIS IN IDEM

1. Extradition shall not be granted when the person sought has been convicted or discharged with final and binding effect by the competent authorities in the Requested State for the offense for which extradition is requested.

2. An acquittal or a discharge for lack of jurisdiction is not an obstacle to extradition.

ARTICLE 7

LAPSE OF TIME

Extradition shall not be granted if the prosecution or the carrying out of the sentence has become barred by lapse of time under the laws of the Requesting State.

ARTICLE 8

CAPITAL PUNISHMENT

1. When the offense for which extradition is sought is punishable by death under the laws in the Requesting State and is not punishable by death under the laws in the Requested State, the Requested State may refuse extradition unless the Requesting State provides an assurance that the death penalty will not be imposed (in the case of a person sought for trial) or carried out (in the case of a person already sentenced to death at the time extradition is requested).

2. In instances in which a Requesting State provides an assurance in accordance with paragraph 1 of this Article, the Requested State shall grant extradition, and the Requesting State shall fully comply with the assurance.

ARTICLE 9

CONVICTIONS IN ABSENTIA

If the person sought has been found guilty in absentia, the executive authority of the Requested State may refuse extradition unless the Requesting State provides it with such information or assurances as the Requested State considers sufficient to demonstrate that the person was afforded an adequate opportunity to present a defense or that there are adequate remedies or additional proceedings available to the person after surrender.

ARTICLE 10

EXTRADITION PROCEDURES AND REQUIRED DOCUMENTS

1. All requests for extradition shall be submitted through the diplomatic channel.

2. The request for extradition shall be supported by:

(A) documents, statements, or other types of information which describe the identity, the nationality and probable location of the person sought;

(B) information describing the facts of the offense and the procedural history of the case;

(C) the text of the law describing the essential elements of the offense for which extradition is requested;

(D) the text of the law prescribing the punishment for the offense;

(E) a statement of the provisions of law describing any time limit on the prosecution; and

(F) the documents, statements, or other types of information specified in paragraph 3 or 4 of this article, as applicable.

3. A request for extradition of a person who is sought for prosecution shall be supported by: (A) a copy of the warrant or order of arrest issued by a judge or other competent authority; (B) a copy of the charging document, if any; and (C) documents setting forth sufficient information to provide a reasonable basis to believe that the person to be extradited committed the offense for which extradition is requested and is the person named in the warrant of arrest. 4. A request for extradition relating to a person who has been found guilty of the offense for which extradition is sought shall be supported by: (A) a copy of the judgment of conviction or, if such copy is not available, a statement by a judicial authority that the person has been found guilty; (B) information establishing that the person sought is the person to whom the finding of guilt refers; and (C) a copy of the sentence imposed, if the person sought has been sentenced, and a statement establishing to what extent the sentence has been carried out. 5. Documents transmitted through the diplomatic channel shall be admissible in extradition proceedings in the Requested State without further certification, authentication, or other legalization. ARTICLE 11 SUPPLEMENTARY INFORMATION 1. If, at any stage of the extradition proceedings, the Requested State considers that the information furnished in support of the request for the extradition of a person is not sufficient to fulfill the requirements for extradition, that state may request the necessary supplementary information and may fix a reasonable time limit for the receipt thereof. 2. If the supplementary information furnished is not sufficient or is not received within the time specified, and if, as a consequence, the person sought is discharged, such discharge shall not preclude the Requesting State from making a new request for the extradition of the person sought. 3. Where the person sought is discharged from custody, the Requested State shall notify the Requesting State as soon as practicable.

ARTICLE 12

TRANSLATION

Unless otherwise agreed as appropriate in a specific case, all documents shall be translated by the Requesting State into the language of the Requested State. Translation need not be certified.

ARTICLE 13

PROVISIONAL ARREST

1. In case of urgency, a Contracting State may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between he United States Department of Justice and the Ministry of Justice of Austria. The facilities of the International Criminal Police Organization (Interpol) may be used to transmit such a request.

2. The application for provisional arrest shall contain:

(A) a description of the person sought and information concerning the person’s nationality;

(B) the location of the person sought if known;

(C) a brief statement of the facts of the case, including, if possible, the time and location of the offense;

(D) a description of the laws violated and the applicable penalty;

(E) a statement of the existence of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and

(F) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the extent to which its request has been complied with.

4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to the application of the Requesting State if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 10.

5. Termination of provisional arrest pending extradition pursuant to paragraph 4 is not an obstacle to rearrest and extradition if the extradition request is received later.

ARTICLE 14

DECISION AND SURRENDER

1. The Requested State shall promptly notify the Requesting State of its decision on the request for extradition. If the request is denied in whole or in part, the Requested State shall provide an explanation of the reasons for the denial.

2. If the request for extradition is granted, the authorities of the Contracting Parties shall decide on the time and place for the surrender of the person sought. The Requested State shall make known for what period the person sought was in custody pending extradition.

3. If the person sought is not removed from the territory of the Requested State within the time prescribed by the law of that State or, if the Requested State has no such law, within a reasonable period of time to be determined by the Requested State, that person may be discharged from custody. In such cases the Requested State may subsequently refuse extradition for the same offense.

4. If circumstances beyond its control prevent a Contracting Party from timely surrendering or taking delivery of the person to be extradited, it shall notify the other Contracting Party before the expiration of the time limit. In such a case, the competent authorities of the Contracting Parties may decide upon a new date for the surrender.

ARTICLE 15

POSTPONED AND TEMPORARY SURRENDER

1. If the extradition request is granted in the case of a person who is being proceeded against or is serving a sentence in the Requested State, the Requested State may postpone the surrender of the person sought. The postponement may continue until the prosecution of the person has been concluded and any sentence has been served.

2. In such cases, the Requested State may also temporarily surrender the person sought to the Requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody in the Requesting State and shall be returned to the Requested State after the conclusion of the proceedings against that person, in accordance with conditions to be determined by agreement of the Contracting States. The time spent in custody in the territory of the Requesting State shall be counted toward the penalty imposed or to be imposed in the Requested State.

ARTICLE 16

DEFERRAL OF EXTRADITION PROCEEDINGS

In the case of a person who is being prosecuted in the Requested State, that state may defer the extradition proceedings until the prosecution has been concluded.

ARTICLE 17

REQUESTS FOR EXTRADITION MADE BY SEVERAL STATES

1. If the Requested State receives requests from the other Contracting State and from any other state or states for the extradition of the same person, either for the same offense or for a different offense, the executive authority of the Requested State shall determine to which State it will surrender the person. In making its decision, the Requested State shall consider all relevant factors, including but not limited to:

(A) treaty obligations;

(B) the place where each offense was committed;

(C) the respective interests of the Requesting States;

(D) the gravity of the offenses;

(E) the possibility of further extradition between the Requesting States; and

(F) the chronological order in which the requests were received from the Requesting States.

2. If the requests are based on different offenses and if precedence is given to the request of a third state, the Requested State may report to what extent it waives the rule of specialty with respect to possible further extradition.

ARTICLE 18

SEIZURE AND SURRENDER OF PROPERTY

1. To the extent permitted under its law, the Requested State may seize all articles, documents, and evidence connected with the offense for which extradition is sought. Such items shall be surrendered to the Requesting State if extradition is granted. The items mentioned in this article may be surrendered even when extradition cannot be effected due to the death, disappearance, or escape of the person sought.

2. The Requested State may condition the surrender of the property upon satisfactory assurances from the Requesting State that the items 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.

3. The rights of third parties in such property shall be duly respected.

4. When items are surrendered pursuant to this article, restrictive regulations concerning the import and export of articles and foreign currency shall not apply.

ARTICLE 19

RULE OF SPECIALTY

1. A person extradited under this treaty may not be detained, tried, punished, or subjected to any other restrictions of his personal liberty in the Requesting State in relation to an offense, except for:

(A) an offense for which extradition has been granted or an offense based on the same facts on which extradition was granted, provided such offense is extraditable or is a lesser included offense; or

(B) an offense committed after the surrender of the person; or

(C) an offense for which the executive authority of the Requested State consents to the person’s detention, trial, punishment, or other restriction of personal liberty. For this purpose, the Requested State may require the submission of the documents called for in Article 10 and a legal record of any statements made by the extradited person in respect of the request for consent. The person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request is being processed.

2. A person extradited under this Treaty may not be extradited to a third state for an offense committed prior to his surrender unless the surrendering State consents.

3. The restrictions set forth in paragraphs 1 and 2 of this article shall not apply if the extradited person:

(A) leaves the territory of the Requesting State after extradition and voluntarily returns or is lawfully returned

to it; or (B) does not leave the territory of the Requesting State within 30 days from the day on which that person is free to leave.

4. The provisions of this Article shall not prevent the Requesting State from taking measures necessary under its law to effect the deportation of the extradited person from its territory or to prevent expiration of a right of action through lapse of time.

ARTICLE 20

SIMPLIFIED EXTRADITION

If extradition is not obviously precluded by the laws of the Requested State and if the person sought consents to extradition and surrender without formal extradition proceedings, the Requested State may surrender the person without formal proceedings. In this case Article 19 shall not be applicable, and the Requested State shall so inform the Requesting State.

ARTICLE 21

TRANSIT

1. Either Contracting State may authorize transportation through its territory of a person who is being extradited to the other State by a third State. A request for transit shall be made through the diplomatic channel or directly between the United States Department of Justice and the Ministry of Justice of Austria. The facilities of the International Criminal Police Organization (INTERPOL) may be used to transmit such a request. It shall contain a description of the person being transported and a brief statement of the facts of the case. A person in transit shall be detained in custody during the period of transit.

2. No authorization is required where air transportation is used by one Contracting State and no landing is scheduled on the territory of the other State. If an unscheduled landing occurs on the territory of the other Contracting State, that State may require the request for transit as provided in paragraph 1. That Contracting State shall detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.

ARTICLE 22

ASSISTANCE AND EXPENSES

1. The appropriate authorities of the Requested State shall advise the Requesting State and represent its interests by all legal means within their power in extradition proceedings before the competent judges and officials.

2. The Requesting State shall bear the expenses related to the translation of documents and the transportation of the person surrendered. The Requested State shall pay all other expenses incurred in that state by reason of the extradition proceedings.

3. Neither state shall make any pecuniary claim against the other state arising out of the arrest, detention, examination, or surrender of persons sought under this Treaty.

ARTICLE 23

CONSULTATION

The United States Department of Justice and the Ministry of Justice of Austria may consult with each other directly in connection with the processing of individual cases in furtherance of maintaining and improving procedures for the implementation of this Treaty.

ARTICLE 24

APPLICATION

This Treaty shall apply to offenses committed before as well as after it enters into force.

ARTICLE 25

RATIFICATION AND ENTRY INTO FORCE

1. This Treaty shall be subject to ratification, and the instruments of ratification shall be exchanged at Washington as soon as possible.

2. This Treaty shall enter into force on the first day of the third month following the month in which the exchange of the instruments of ratification took place.

3. Upon the entry into force of this Treaty, the Treaty between the Government of the United States of America and the Government of Austria for the extradition of fugitives from justice, and exchange of notes concerning the death penalty, signed at Vienna on January 31, 1930, and the Supplementary Extradition Convention between the Government of the United States and the Government of Austria, signed at Vienna on May 19, 1934, shall cease to have effect. Nevertheless, the prior Treaty and Supplementary Convention shall apply to any extradition proceedings in which the extradition documents have already been submitted to the courts of the Requested State at the time this Treaty enters into force, except that Article 2 of this Treaty shall be applicable to such proceedings. Articles 15 and 19 of this Treaty shall apply to persons found extraditable under the prior Treaties.

ARTICLE 26

TERMINATION

Either Contracting State may terminate this Treaty at any time by giving written notice to the other Contracting State through the diplomatic channel, and the termination shall be effective six months after the date of the receipt of such notice.

IN WITNESS WHEREOF, the undersigned, being duly authorized, have signed this Treaty.

DONE at Washington, in duplicate, this eighth day of January, 1998, in the English and German languages, both texts being equally authentic.

FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:

FOR THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA:
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Austria Extradition Treaty-EU Protocol with the United States

July 20, 2005, Date-Signed

February 1, 2010, Date-In-Force
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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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Australia Extradition Treaty with the United States

April 4, 2011

Australia International Extradition Treaty with the United States

May 14, 1974, Date-Signed

May 8, 1976, Date-In-Force

STATUS:

The Treaty was signed at Washington on May 14, 1974. Ratification was advised by the Senate of the United States of America on December 1, 1975. It was Ratified by the President of the United States of America on December 16, 1975. It was Ratified by Australia on December 22, 1975. Ratifications exchanged at Canberra on April 8, 1976. The Treaty was Proclaimed by the President of the United States of America May 5, 1976. It Entered into force May 8, 1976.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION CONSIDERING THAT:

The Treaty on Extradition between the United States of America and Australia was signed at Washington on May 14, 1974, the original of which Treaty is hereto annexed;

The Senate of the United States of America by its resolution of December 1, 1975, two-thirds of the Senators present concurring therein, gave its advice and consent to ratification of the Treaty;

The Treaty was ratified by the President of the United States of America on December 16, 1975, in pursuance of the advice and consent of the Senate, and has been duly ratified on the part of Australia;

The respective instruments of ratification were exchanged at Canberra on April 8, 1976;

It is provided in Article XXI of the Treaty that the Treaty shall enter into force thirty days after the exchange of instruments of ratification;

NOW, THEREFORE, I, Gerald R. Ford, President of the United States of America, proclaim and make public the Treaty, to the end that it shall be observed and fulfilled with good faith on and after May 8, 1976, by the United States of America and by the citizens of the United States of America and all other persons subject to the jurisdiction thereof.

IN TESTIMONY WHEREOF, I have signed this proclamation and caused the Seal of the United States of America to be affixed.

DONE at the city of Washington this fifth day of May in the year of our Lord one thousand nine hundred seventy-six and of the Independence of the United States of America the two hundredth.

The United States of America and Australia, desiring to make more effective the cooperation of the two countries for the reciprocal extradition of offenders, agree as follows:

ARTICLE I

Each Contracting Party agrees, under the conditions and circumstances established by this Treaty, reciprocally to deliver up persons found in its territory who have been charged with or convicted of any of the offenses mentioned in Article II of this Treaty committed within the territory of the other Contracting Party, or outside that territory under the conditions specified in Article IV of this Treaty.

ARTICLE II

(1) Persons shall be delivered up according to the provisions of this Treaty for any of the following offenses provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year or by death:

1. Murder or willful murder; assault with intent to commit murder.

2. Manslaughter.

3. Aggravated or willful wounding or injuring; assault occasioning actual bodily harm.

4. Unlawful throwing or application of any corrosive or injurious substances upon the person of another.

5. Rape; indecent assault, including unlawful sexual acts with or upon children.

6. Illegal abortion.

7. Procuring, or trafficking in, women or young persons for immoral purposes; living on the earnings of prostitution.

8. Abandoning or exposing a child when the life of that child is or is likely to be injured or endangered.

9. Bigamy.

10. Kidnapping; child stealing; abduction; false imprisonment.

11. Robbery.

12. Burglary; housebreaking or any similar offense.

13. Larceny.

14. Embezzlement.

15. Obtaining any property, money or valuable securities by false pretenses or other form of deception.

16. An offense against the law relating to bribery.

17. Extortion.

18. Receiving any property, money or valuable securities knowing the same to have been unlawfully obtained.

19. Fraud by an agent, bailee, banker, factor or trustee, by a director or officer of a company or by a promoter of a company, whether existing or not.

20. An offense relating to counterfeiting or forgery.

21. Perjury; subornation of perjury; conspiring to defeat the course of justice.

22. Arson.

23. An act done with the intention of endangering the safety of any person traveling upon a railway or in any aircraft or vessel or other means of transportation.

24. Any seizure or exercise of control, by force or violence or threat of force or violence, or by any other form of intimidation, of an aircraft.

25. Piracy, by statute or by law of nations; revolt on board a vessel against the authority of the master of the vessel.

26. Malicious injury to property.

27. An offense against the bankruptcy laws.

28. An offense against the laws relating to narcotics, dangerous drugs or psychotropic substances. 29. Dealing in slaves.

(2) Extradition shall also be granted for any other offenses that are made extraditable under the extradition laws of Australia and which are felonies under the laws of the United States of America.

(3) Extradition shall also be granted for any offense against a federal law of the United States of America of which one of the above-mentioned offenses is a substantial element, even if transporting or transportation or the use of the mails or of interstate facilities is also an element of the specific offense.

(4) Extradition shall also be granted for aiding, abetting, counseling or procuring the commission of, being an accessory before or after the fact to, or attempting or conspiring to commit, any of the offenses mentioned in the preceding paragraphs of this Article.

(5) If extradition is requested for any offense mentioned in a preceding paragraph of this Article and that offense is punishable under the laws of both Contracting Parties by a term of imprisonment exceeding one year or by death, that offense shall be extraditable under the provisions of this Treaty whether or not the laws of both Contracting Parties would place that offense within the same category of offenses made extraditable by that preceding paragraph of this Article and whether or not the laws of the requested State denominate the offense by the same terminology.

ARTICLE III

(1) For the purposes of this Treaty, the territory of a Contracting Party means all the territory under the jurisdiction of that Contracting Party, including airspace and territorial waters, and also includes –

(a) any vessel registered in any territory under the jurisdiction of that Contracting Party; and

(b) any aircraft registered in any such territory provided that the aircraft is in flight when the relevant offense is committed.

(2) For the purposes of this Treaty –

(a) the territory under the jurisdiction of a Contracting Party includes the Territories for the international relations of which that Contracting Party is responsible;

(b) an aircraft shall be considered in flight from the moment when the power is applied for the purpose of take-off until the moment when the landing run ends.

ARTICLE IV

When the offense for which extradition has been requested has been committed outside the territory of the requesting State –

(a) if the United States of America is the requested State – the executive authority of the United States of America; or

(b) if Australia is the requested State – the Attorney-General of Australia, shall have the power to grant the extradition if the laws of the requested State provide for jurisdiction over such an offense committed in similar circumstances.

ARTICLE V

(1) Neither of the Contracting Parties shall be bound to deliver up its own nationals under this Treaty but the executive authority of each Contracting Party shall have the power to deliver them up if, in its discretion, it considers that it is proper to do so.

(2) For the purposes of this Article –

(a) a reference to the executive authority of a Contracting Party shall, in the case of Australia, be construed as a reference to the Attorney-General of Australia;

(b) Australian protected persons shall be deemed to be nationals of Australia; and

(c) the nationality of a person shall be determined to be that which he held at the time when he was charged with the offense for which his extradition is requested.

ARTICLE VI

Extradition shall be granted only if the evidence is found sufficient, according to the laws in the territory where the person whose extradition is requested is found, either to justify his trial or committal for trial if the offense with which he is charged or its equivalent had been committed in that territory or to prove that he is the identical person convicted by the courts of the requesting State.

ARTICLE VII

(1) Extradition shall not be granted in any of the following circumstances:

(a) when the person whose extradition is requested is being proceeded against, has been tried and discharged or punished, or has been pardoned, in the territory of the requested State for the offense for which his extradition is requested;

(b) when the prosecution for the offense has become barred by lapse of time according to the laws of the requesting State; or

(c) when the offense in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offense of a political character.

(2) If any question arises whether a case comes within the provisions of subparagraph (c) of paragraph (1) of this Article, the requested State shall decide that question.

ARTICLE VIII

If, under the law of the requesting State, an offense for which the extradition of a person is requested, or any other offense for which he may be detained or tried under paragraph (1) of Article XIV, is subject to a penalty of death but the law of the requested State does not provide for such a penalty in a similar case, the requested State may recommend to the requesting State that any punishment imposed for any of those offenses be a less severe punishment.

ARTICLE IX

When the person whose extradition is requested is being proceeded against or is serving a sentence in the territory of the requested State for an offense other than that for which extradition has been requested, his surrender may be deferred until the conclusion of the proceedings and the full execution of any punishment that may be or may have been imposed on him.

ARTICLE X

The determination that extradition based upon the request therefor should or should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use such remedies and recourses as are provided by that law.

ARTICLE XI

(1) The request for extradition shall be made through the diplomatic channel.

(2) The request shall be accompanied by a description of the person sought, a statement of the facts of the case, the text of the applicable laws of the requesting State including the law defining the offense, the law prescribing the punishment for the offense and the law relating to the limitation of the legal proceedings.

(3) When the request relates to a person who has not yet been convicted, it must also be accompanied by a warrant of arrest issued by a judge or other judicial officer of the requesting State and by such evidence as, according to the laws of the requested State, would justify his trial or committal for trial if the offense had been committed there, including evidence proving the person requested is the person to whom the warrant of arrest refers.

(4) When the request relates to a person already convicted, it must be accompanied by the judgment of conviction and sentence, if any, passed upon him in the territory of the requesting State, by a statement, if applicable, showing how much of the sentence has not been served and by evidence proving that the person requested is the person to whom the judgment refers.

(5) The warrant of arrest and deposition or other evidence, given under oath or affirmed, and the judicial documents establishing the existence of the conviction, or certified copies of those documents, shall be admitted in evidence in the examination of the request for extradition when –

(a) in the case of a request by Australia – those documents or certified copies bear the signature, or are accompanied by the attestation, of a judge, magistrate or officer of Australia or are authenticated by the official seal of the Attorney-General and, in any case, are certified by the principal diplomatic or consular officer of the United States of America in Australia; or

(b) in the case of a request by the United States of America – the warrant, if any, bears an original signature, or the other documents are certified, by a judge, magistrate or officer of the United States of America and, in any case, are authenticated by the oath of a witness or sealed with the official seal of the Department of State on behalf of the Secretary of State or of the Department of Justice on behalf of the Attorney General.

ARTICLE XII

(1) In case of urgency a Contracting Party may apply for the provisional arrest of the person sought pending the presentation of the request for extradition through the diplomatic channel.

(2) The application shall contain a description of the person sought, an indication of intention to request the extradition of the person sought and a statement of the existence of a warrant of arrest or a judgment of conviction against that person, and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offense been committed, or the person sought been convicted, in the territory of the requested State.

(3) On receipt of such an application the requested State shall take the necessary steps to secure the arrest of the person claimed.

(4) A person arrested upon such an application shall be set at liberty upon the expiration of forty-five days from the date of his arrest if a request for his extradition accompanied by the documents specified in Article XI has not been received.

(5) Paragraph (4) of this Article shall not prevent the institution of proceedings with a view to extraditing the person sought if the request is subsequently received.

ARTICLE XIII

(1) If the requested State requires additional evidence or information to enable it to decide on the request for extradition, that State may request that such evidence or information be furnished within such period as it specifies.

(2) If the person sought is under arrest and the additional evidence or information submitted as aforesaid is not sufficient or if such evidence or information is not received within the period specified by the requested State, he shall be discharged from custody.

(3) The discharge of a person from custody under paragraph (2) of this Article shall not bar the requesting State from submitting another request in respect of the same offense.

ARTICLE XIV

(1) A person extradited under this Treaty may be detained, tried or punished in the territory of the requesting State for any offense mentioned in Article II for which the person could be convicted upon proof of the facts upon which the request for extradition was based.

(2) Except as provided in paragraph (1) of this Article, a person extradited under this Treaty shall not be detained, tried or punished in the territory of the requesting State for an offense other than that for which extradition has been granted, or be extradited by that State to a third State, unless –

(a) he has left the territory of the requesting State after his extradition and has voluntarily returned to it;

(b) he has not left the territory of the requesting State within thirty days after being free to do so; or

(c) the offense concerned is one for which the requested State has consented to his detention, trial or punishment or to his extradition to a third State and is an offense mentioned in Article II.

(3) A request for the consent of the requested State under subparagraph (c) of paragraph (2) of this Article shall be accompanied by such information and documents as are requested by that State.

(4) This Article does not apply to offenses committed after the extradition.

ARTICLE XV

A requested State, upon receiving two or more requests for the extradition of the same person either for the same offense, or for different offenses, shall determine to which of the requesting States it will extradite the person sought, taking into consideration the circumstances and particularly the possibility of a later extradition between the requesting States, the seriousness of each offense, the place where the offense was committed, the nationality and residence of the person sought, the dates upon which the requests were received and the provisions of any extradition agreements between the requested State and the other requesting State or States.

ARTICLE XVI

(1) The requested State shall promptly communicate to the requesting State through the diplomatic channel the decision on the request for extradition.

(2) Where extradition of a person for an offense is granted, the person shall be conveyed by the appropriate authorities of the requested State to a port or airport in the territory of that State agreed between that State and the requesting State.

(3) If a warrant or order for the extradition of a person sought has been issued by the competent authority and he is not removed from the territory of the requested State within such time as is prescribed by the laws of that State, he may be set at liberty, and the requested State may subsequently refuse to extradite that person for the same offense.

(4) Australia is not required to extradite a person before the expiration of fifteen days after the date on which he has been held judicially to be liable to extradition, or, if proceedings for a writ of habeas corpus have been brought, before the expiration of fifteen days after the final decision of the competent court has been given.

ARTICLE XVII

(1) To the extent permitted under the law of the requested State and subject to the rights of third parties, which shall be duly respected, all articles found in the requested State that have been acquired as a result of the offense or may be required as evidence shall, if the requesting State so requests, be surrendered if extradition is granted.

(2) Subject to the qualifications of paragraph (1) of this Article, the above-mentioned articles shall, if the requested State so requests, be surrendered to the requesting State even if the extradition, having been agreed to, cannot be carried out owing to the death or escape of the person sought.

(3) Where the law of the requested State or the rights of third parties so require, any articles so surrendered shall be returned to the requested State free of charge if that State so requests.

ARTICLE XVIII

(1) Expenses related to the transportation of the person sought to the requesting State shall be paid by the requesting State.

(2) The requested State shall make all necessary arrangements for, and meet the cost of, the representation of the requesting State in any proceedings arising out of a request for extradition.

(3) No pecuniary claim, arising out of the arrest, detention, examination and surrender of persons sought under the terms of this Treaty, shall be made by the requested State against the requesting State.

ARTICLE XIX

(1) The right to transport through the territory of one of the Contracting Parties a person surrendered to the other Contracting Party by a third State shall be granted on request made through the diplomatic channel.

(2) In the case of a national of the requested State, the request shall establish that conditions are present which would warrant extradition of the person by the State of transit.

(3) The request may be refused if reasons of public order are opposed to the transit.

(4) Permission for the transit of a person surrendered shall include authorization for accompanying officials to hold that person in custody or request and obtain assistance from authorities in the State of transit in maintaining custody.

(5) The Party to which the person has been extradited shall reimburse the Party through whose territory such person is transported for any expenses incurred by the latter in connection with such transportation.

ARTICLE XX

This Treaty applies to offenses mentioned in Article II committed before, on or after the date on which this Treaty enters into force, provided that no extradition shall be granted for an offense committed before that date which was not an offense under the laws of both Contracting Parties at the time of its commission.

ARTICLE XXI

(1) This Treaty is subject to ratification and the instruments of ratification shall be exchanged in Canberra as soon as possible.

(2) This Treaty shall enter into force thirty days after the exchange of instruments of ratification. (May 8, 1976.)

(3) This Treaty may be terminated by either Contracting Party giving notice of termination to the other Contracting Party at any time and the termination shall be effective six months after the date of receipt of such notice.

(4) This Treaty shall terminate and replace, as between the Contracting Parties to the present Treaty, the Treaty on Extradition between the United States and Great Britain of December 22, 1931, as made applicable to Australia.

IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty.

DONE at Washington this fourteenth day of May, 1974.

SIGNATORIES:

GERALD R. FORD

By the President:

JOSEPH JOHN SISCO

Acting Secretary of State

FOR THE UNITED STATES OF AMERICA:

FOR AUSTRALIA:
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Australia Extradition Treaty-Protocol with the United States

Protocol amending the treaty on extradition between Australia and the United States of America of May 14, 1974 Australia and The United States of America; Desiring to make more effective the Extradition Treaty between the Contracting Parties signed at Washington May 14, 1974 (hereinafter referred to as “the Treaty”);

September 4, 1990, Date-Signed

December 21, 1992, Date-In-Force

Have agreed as follows:

ARTICLE 1

The text of Article II of the Treaty is replaced by the following:

“(1) An offence shall be an extraditable offence if it is punishable under the laws in both Contracting Parties by deprivation of liberty of more than one year, or by a more severe penalty. However, if the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, the executive authority of the requested State shall have authority to refuse extradition if a period of less than six months of imprisonment remains to be served.

(2) The following offences shall be extraditable if they meet the requirements of paragraph (1): conspiring to commit, attempting to commit, aiding or abetting, counselling or procuring the commission of, or being an accessory after the fact to, any offence described in that paragraph.

(3) For the purpose of this Article, an offence shall be an extraditable offence:
(a) whether or not the laws in the Contracting Parties place the offence within the same category of offences or describe the offence by the same terminology; and
(b) whether or not the offence is one for which United States federal law requires proof of interstate transportation, or use of the mails, or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court.

(4) If the offence has been committed outside the territory of the requesting State, extradition shall be granted if the laws in the requested State provide for the punishment of an offence committed outside of its territory in similar circumstances. If the laws in the requested State do not so provide, the executive authority of the requested State may, in its discretion, grant extradition.

(5) Subject to the laws in the requested State, if extradition has been granted for an extraditable offence, it shall also be granted for any other offence specified in the request even if the latter offence is punishable by deprivation of liberty of one year or less, provided that all other requirements of extradition are met.”

ARTICLE 2

Article III and Article IV of the Treaty are deleted.

ARTICLE 3

The text of paragraph 2 of Article V of the Treaty is replaced by the following:

“If the requested State refuses to extradite a national of that State on the basis of nationality it shall, if the requesting State so requests and the laws of the requested State allow, submit the case to the competent authorities in order that proceedings for the prosecution of the person may be undertaken in respect of all offences for which the extradition has been requested.”

Schedule 2

ARTICLE 4

Article VI of the Treaty is deleted.

ARTICLE 5

The text of Article VIII of the Treaty is replaced by the following:

“If, under the law of the requesting State, an offence for which the extradition of a person is requested is subject to a penalty of death, the requested State may refuse the extradition unless the requesting State gives an undertaking that the death penalty will not be imposed or, if imposed, will not be carried out.”

ARTICLE 6

The text of Article IX of the Treaty is replaced by the following:

“(1) If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the requested State, the requested State may temporarily surrender the person sought to the requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody in the requesting State and shall be returned to the requested State after the conclusion of the proceedings against that person, in accordance with conditions to be mutually determined in writing between the Contracting Parties.

(2) The requested State may postpone the extradition proceedings against, or the surrender of, any person who is being prosecuted or who is serving a sentence in that State. The postponement may continue until the prosecution of the person sought has been concluded and any sentence has been served.”

ARTICLE 7

The text of Article XI of the Treaty is replaced by the following:

(1) All requests for extradition shall be made through the diplomatic channel.

(2) The request for extradition shall be supported by:
(a) documents, statements, or other types of information which describe the identity and probable location of the person sought;
(b) a description of the conduct constituting the offence;
(c) a statement of the law describing the essential elements of the offence for which extradition is requested; and
(d) a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings.

(3) A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by:
(a) a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence;
(b) a copy of the charging document, if any; and
(c) a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.

(4) A request for extradition of a person who has been found guilty of the offence for which extradition is sought, other than a person who has been found guilty in his absence, shall also be supported by:
(a) a copy of the judgment of conviction, if available, or a statement by a judicial authority that the person has been found guilty;
(b) information establishing that the person sought is the person to whom the finding of guilt refers;
(c) a copy of the sentence imposed, if the person has been sentenced, and a statement establishing to what extent the sentence has been carried out; and
(d) if the person has been found guilty but no sentence has been imposed, a statement affirming that it is intended to impose a sentence.

(5) The documents which accompany an extradition request shall be received and admitted as evidence in extradition proceedings if:
(a) in the case of a request from the United States, they
(i) purport to be signed or certified by a judge, magistrate, or officer in or of the United States; and
(ii) purport to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal of the requesting State or of a Minister of State, or of a Department or officer of the Government of the requesting State;
(b) in the case of a request from Australia, they are certified by the principal diplomatic or consular officer of the United States resident in Australia, as provided by the extradition laws of the United States; or
(c) they are certified or authenticated in any other manner accepted by the law of the requested State.”

ARTICLE 8

The text of Article XII of the Treaty is replaced by the following:

(1) In case of urgency, either Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Department of Justice in the United States and the Attorney-General’s Department in Australia. The facilities of the International Criminal Police Organisation (Interpol) may be used to transmit such a request.

(2) The application for provisional arrest shall contain: (a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a brief statement of the facts of the case, including, if possible, the time and location of the offence;
(d) a description of the laws violated or alleged to have been violated and, where applicable, the penalty which may be imposed;
(e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and
(f) a statement that a request for the extradition of the person sought will follow.

(3) On receipt of the application, the requested State shall take appropriate steps to secure the arrest of the person sought. The requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.

(4) A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to the application of the requesting State if the executive authority of the requested State has not received the formal request for extradition and the supporting documents required in Article XI.

(5) The fact that the person sought has been discharged from custody pursuant to paragraph (4) of this Article shall not prejudice the subsequent rearrest and extradition of that person if the extradition request and supporting documents are received at a later date.”

ARTICLE 9

Article XIII of the Treaty is amended by deleting the words evidence or wherever they occur in Article XIII (1) and Article XIII (2), and by adding the following:

(4) If the person sought, after being personally advised by the competent authority of the requested State of his right to formal extradition proceedings, consents to surrender to the requesting State, the requested State may surrender the person as expeditiously as possible and without further proceedings.”

ARTICLE 10

The text of Article XIV of the Treaty is replaced by the following:

(1) A person extradited under this Treaty may not be detained, tried, or punished in the requesting State except for:
(a) the offence for which extradition is granted or any other offence of which the person could be convicted on proof of the conduct constituting the extradition offence provided that the offence carries the same or a lesser punishment;
(b) any offence committed after the extradition; or
(c) any offence for which the executive authority of the requested State consents to the person’s detention, trial or punishment. For the purposes of this subparagraph, the requested State may require the submission of the documents specified in Article XI.

(2) A person extradited under this Treaty by a Contracting Party may not be extradited to a third State for an offence committed prior to his surrender unless that Contracting Party consents.

(3) Paragraphs (1) and (2) of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of that person to a third State, if:
(a) that person leaves the territory of the requesting State after extradition and voluntarily returns to it; or
(b) that person does not leave the territory of the requesting State within fifteen days of the day on which the person is free to do so.”

ARTICLE 11

The text of Article XV of the Treaty is replaced by the following:

“If the requested State receives requests from the other Contracting Party and from any other State or States for the extradition of the same person, either for the same offence or for a different offence, the executive authority of the requested State shall determine to which State it will surrender the person. In making its decision, the requested State shall consider all relevant factors, including but not limited to:
(a) whether the requests were made pursuant to treaty; (b) the place where each offence was committed;
(c) the respective interests of the requesting States;
(d) the gravity of the offences;
(e) the nationality of the victim;
(f) the possibility of further extradition between the requesting
States; and
(g) the chronological order in which the requests were received from the requesting States.”

ARTICLE 12

The text of Article XVI of the Treaty is replaced by the following:

(1) The requested State shall promptly notify the requesting
State of its decision on the request for extradition.

(2) If the request is denied in whole or in part, the requested State shall provide information as to the reasons for the denial of the request. The requested State shall provide copies of pertinent judicial decisions on request.

(3) If the request for extradition is granted, the competent authorities of the Contracting Parties shall arrange for the time and place of the surrender of the person sought.

(4) If the person sought is not removed from the territory of the requested State within the time prescribed by the law of that State, that person may be discharged from custody, and the requested State may subsequently refuse extradition for the same offences.”

ARTICLE 13

The text of Article XVII of the Treaty is replaced by the following:

(1) To the extent permitted under its laws, the requested State may seize all articles, documents, and evidence connected with the offence in respect to which extradition is or is to be sought and surrender those items to the requesting State if extradition is subsequently granted. The items mentioned in this Article may be surrendered even when extradition cannot be effected due to the death, disappearance, or escape of the person sought.

(2) The requested State may require that the surrender of any property be subject to 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 surrender of any property if it is needed as evidence in the requested State.

(3) The rights of third parties in any property shall be duly respected.”

ARTICLE 14

The text of Article XVIII of the Treaty is replaced by the following:

“(1) The requested State shall advise, assist, and otherwise represent the interests of the requesting State in any proceedings arising out of a request for extradition.

(2) The requesting State shall bear the expenses related to any translation of documents and the transportation of the person surrendered. The requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings.

(3) Neither State shall make any pecuniary claim against the other arising out of the arrest, detention, examination, or surrender of the person sought under this Treaty.”

ARTICLE 15

The text of Article XIX of the Treaty is replaced by the following:

“(1) Either Contracting Party may authorise transportation through its territory of a person surrendered to the other State by a third State. A request for transit shall contain a description of the person being transported and a brief statement of the facts of the case. A person in transit shall be held in custody during the period of transit.

(2) No authorisation is required where air transportation is used and no landing is scheduled on the territory of the other Contracting Party. If an unscheduled landing occurs on the territory of the other Contracting Party, the other Contracting Party may require the request for transit as provided in paragraph 1. That Contracting Party shall detain the person being transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing.”

ARTICLE 16

Notwithstanding Article XX of the Treaty, this Protocol shall apply in all cases in which the request for extradition is made after its entry into force regardless of whether the offence was committed before or after that date.

ARTICLE 17

This Protocol shall enter into force on the date on which the Contracting Parties have exchanged written notification that they have complied with their respective requirements for the entry into force of this Protocol.

IN WITNESS WHEREOF, the undersigned, being duly authorised thereto by their respective Governments, have signed this Protocol.

DONE at Seoul, this 4th day of September, 1990

FOR AUSTRALIA: MICHAEL DUFFY

FOR THE UNITED STATES OF AMERICA: RICHARD THORNBURGH

Notes to the Extradition (United States of America) Regulations
Note 1

The Extradition (United States of America) Regulations (in force under the Extradition Act 1988) as shown in this compilation comprise Statutory Rules 1988 No. 298 amended as indicated in the Tables below.

Table of Statutory Rules:

1988 No. 298 30 Nov 1988 1 Dec 1988 (see Gazette 1988, No. S366)
1992 No. 394 16 Dec 1992 21 Dec 1992 —

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted

Provision affected How affected

R. 4 ……………………………….. am. 1992 No. 394
Heading to Schedule ……….. rep. 1992 No. 394
Heading to Schedule 1 …….. ad. 1992 No. 394
Schedule 2 …………………….. ad. 1992 No. 394

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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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