Netherlands, Netherlands Antilles, and Aruba International Extradition Treaty with the United States
June 24, 1980, Date-Signed
September 15, 1983, Date-In-Force
MESSAGE FROM THE PRESIDENT OF THE UNITED STATES
LETTER OF TRANSMITTAL
THE WHITE HOUSE, May 28, 1981.
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 Treaty of Extradition between the United States of America and the Kingdom of the Netherlands, signed at The Hague on June 24, 1980.
I transmit also, for the information of the Senate, the report of the Department of State with respect to the treaty.
The treaty is one of a series of modern extradition treaties being negotiated by the United States. It expands the list of extraditable offenses to include narcotics violations, aircraft hijacking, bribery, and obstruction of justice, as well as many other offenses not covered by our existing extradition treaty with the Netherlands. Upon entry into force, it will terminate and supersede the existing Extradition Treaty and Supplementary Treaty between the United States and the Netherlands.
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.
LETTER OF SUBMITTAL
DEPARTMENT OF STATE,
Washington, May 9, 1981.
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 the Netherlands (Netherlands), signed at The Hague on June 24, 1980. I recommend that the treaty be transmitted to the Senate for its advice and consent to ratification.
This treaty follows generally the form and content of extradition treaties recently concluded by this Government. The treaty provides for the extradition of fugitives who have been charged with or convicted of any of thirty-six offenses listed in the schedule annexed to the treaty. Significant newly-listed offenses, which are not in our existing treaty with the Netherlands, include those relating to narcotics, aircraft hijacking, and obstruction of justice (both the Netherlands and the United States are Parties to a multilateral convention which in effect has amended the existing bilateral treaty to include hijacking offenses).
Article 1 obligates both States, subject to the provisions of the treaty, to extradite to the other persons charged with or convicted of extraditable offenses.
Article 2 includes as extraditable offenses those which are, under the laws of the Netherlands and the Federal law of the United States, punishable by imprisonment for a maximum period exceeding one year.
Article 2 also authorizes extradition under certain conditions for an attempt to commit or a conspiracy to commit any extraditable offense. This article also permits the Government of the United States to request the extradition of a person for any extraditable offense when Federal jurisdiction is based upon the use of the mails or other means of carrying out interstate commerce.
Article 2 in addition includes a jurisdictional provision which allows for extradition where the offense has been committed outside the territory of the requesting State by a national of that State. Crimes committed outside the territory of the requesting State may also provide the basis for extradition if the offenses so committed would also be punishable under the law of the requested State in similar circumstances. Like provisions are contained in United States extradition treaties with the Federal Republic of Germany, Japan, Norway, and Mexico. It is anticipated that such provisions will be useful in the areas of narcotics and counterfeiting violations.
Article 3 defines the territorial application of the treaty. This article expands the normal context of that concept to include aircraft in flight. This provision also extends jurisdiction to acts of aircraft piracy, whether or not they occur over the territory of either of the Parties.
Article 4 contains the political offense exception clause. It excludes, however, from the category of political offenses murder or other willful crimes against the life or physical integrity of a Head of State or Head of Government or their families. Military offenses are excluded as extraditable offenses.
Article 4 gives the Executive Authority of each Party the responsibility of determining whether a request for extradition involves a political or military offense, unless the national laws of the requested Party grant such powers to its courts. In the United States, the laws do not grant such powers to the courts, and the authority, therefore, would rest with the Executive branch.
Article 5 contains a prior jeopardy provision. It excludes extradition in cases where the person requested has been prosecuted by the requested Party for the offense for which extradition is requested.
Article 6 precludes extradition where prosecution or enforcement of the penalty for the offense for which extradition is sought has become barred by lapse of time according to the law of requested Party.
Article 7 permits refusal of extradition in capital cases unless satisfactory assurances are received that the death penalty will not be imposed or, if imposed, will not be executed for an offense not punishable by death in the country from which extradition is requested. A similar article has been included in most recent treaties.
Article 7 also provides that the Executive Authority may refuse extradition on humanitarian grounds having regard to the age or other personal condition of the person sought. Similar provisions are found in our extradition treaties with Norway and Finland.
Article 8 deals with the extradition of nationals. It contains two provisions similar to those included in some of our other recently signed extradition treaties. It grants the Executive Authority the discretionary power to extradite its own nationals. If extradition is denied on the basis of nationality, the requested Party undertakes to submit the case to its competent authorities for the purpose of prosecution, provided that Party has jurisdiction over the offense. This article thus takes into account the law of the Netherlands ordinarily prohibiting the extradition of Dutch nationals but allowing for their prosecution in the Netherlands for offenses committed abroad.
Article 8 also contains an innovation. It provides that the requested Party may not refuse extradition solely on the basis of nationality where there exists a treaty between the Parties on the execution of foreign penal sanctions. Such agreements, more often referred to as prisoner transfer treaties, would, for example, allow a Dutch national tried and convicted in the United States to return to the Netherlands to serve out his ordered term of incarceration. This provision was put in Article 8 to provide for liberalization of the nationality clause should the Parties in the future conclude such an agreement.
Articles 9-18 outline the procedures by which extradition shall be accomplished. Of particular note are Articles 9 and 13.
Article 9, inter alia, limits extradition to cases where there is sufficient evidence, according to the laws of the requested Party, to bring the person sought to trial had the offense been committed in the requested Party or where the person is shown to have been convicted by the courts of the requesting Party
Article 13 contains another innovation. It allows the requested Party to temporarily surrender a person sought to the requesting Party for purposes of prosecution. The provision was designed to cover the situation where the person sought is found extraditable on foreign charges while serving a sentence in the requested Party for an entirely different offense.
Article 19 provides, among other things, that the requested Party shall make all arrangements necessary for internal extradition procedures and employ all legal means to obtain from the judicial authorities the decisions necessary to perfect the extradition request. We expect to continue the present practice under which each country is represented in extradition proceedings by the other’s Justice Department.
Article 19 also provides that the requesting Party shall only pay the costs associated with the transportation of the person sought and with the translation of extradition documents.
Article 20 stipulates that the treaty is retroactive in effect as to extraditable offenses which were committed before the date of its entry into force and which were punishable under the laws of both Parties when committed.
Article 21 provides that the treaty will enter into force on the date of exchange of the instruments of ratification. Upon entry into force, this treaty will terminate the Treaty of Extradition between the United States and the Netherlands signed on June 2, 1887, and the Supplementary Treaty on Extradition signed on January 18, 1904.
Article 22 makes the treaty applicable to the Netherlands Antilles unless the Netherlands’ ratification shall provide otherwise.
The Department of Justice joins the Department of State in favoring approval of this treaty by the Senate at an early date.
EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE KINGDOM OF THE NETHERLANDS The Government of the United States of America and the Government of the Kingdom of the Netherlands;
Desiring to provide for more effective cooperation between the two States in the repression of crime; and
Desiring to make a new Treaty for the reciprocal extradition of offenders;
Have agreed as follows:
Obligation to Extradite
The Contracting Parties agree to extradite to each other, subject to the provisions described in this Treaty, persons found in the territory of one of the Contracting Parties who have been charged with an offense, found guilty of committing an offense, or are wanted for the enforcement of a judicially pronounced penalty involving a deprivation of liberty or detention order.
Extraditable Offenses and Jurisdiction
1. Extraditable offenses under this Treaty are:
a. Offenses referred to in the Appendix to this Treaty which are punishable under the laws of both Contracting Parties;
b. Offenses, whether listed in the Appendix to this Treaty or not, provided they are punishable under the Federal laws of the United States of America and the laws of the Kingdom of the Netherlands.
In this connection it shall not matter whether or not the laws of the Contracting Parties place the offense within the same category of offenses or denominate an offense by the same technology.
2. Extradition shall be granted in respect of an extraditable offense:
a. For prosecution, if the offense is punishable under the laws of both Contracting Parties by deprivation of liberty for a period exceeding one year;
b. For the imposition of a penalty or detention order, if the offense is punishable under the laws of both Contracting Parties by deprivation of liberty for a period exceeding one year; or
c. For the enforcement of a penalty or detention order for such an offense, if the duration of the penalty or detention order still to be served amounts to at least four months.
3. Extradition shall be granted in respect of an extraditable offense committed outside the territory of the Requesting State if:
a. The courts of the Requested State would be competent to exercise jurisdiction in similar circumstances, or
b. The person sought is a national of the Requesting State.
4. Subject to the conditions set out in paragraphs 1, 2 and 3, extradition shall also be granted:
a. For attempts to commit or participation in an extraditable offense, including participation in an association of persons whose intention it is to commit the offense;
b. For any extraditable offense when, for the purpose of granting jurisdiction to the United States Government, transportation of persons or property, the use of the mails or other means of carrying out interstate or foreign commerce is also an element of the specific offense.
5. When extradition has been granted in respect of an extraditable offense, it may also be granted in respect of any other extraditable offense which would otherwise not be extraditable only by reason of the operation of paragraph 2.
For the purpose of this Treaty the territory of a Contracting Party shall include all territory under the jurisdiction of that Contracting Party, including airspace and territorial waters.
Political and Military Offenses
1. Extradition shall not be granted when in the view of the Requested State the offense for which extradition is requested is of a political character, is connected with an offense of a political character, or it is established that extradition is requested for political purposes.
2. For the purpose of this Treaty a murder or willful crime against the life or physical integrity of a Head of State or Head of Government of one of the Contracting Parties or of a member of that person’s family, including attempts to commit such offenses, shall not be deemed to be offenses within the meaning of paragraph 1.
3. Extradition shall not be granted when the offense for which extradition is requested is a purely military offense.
4. It shall be the responsibility of the Executive Authority of the Requested State to decide on any question raised under this Article, except to the extent that the national laws of that State expressly grant such powers to its courts.
Prior Jeopardy for the Same Offense
Extradition shall not be granted when:
a. The person sought is being proceeded against, has been prosecuted, or has been tried and convicted or acquitted by the Requested State for the offense for which extradition is requested; or,
b. The person sought is otherwise immune from prosecution for the offense for which extradition is requested by reason of the law in the Requested State relating to prior jeopardy.
Lapse of Time
Extradition shall not be granted when the prosecution or the enforcement of the penalty for the offense for which extradition has been sought has become barred by lapse of time according to the law of the Requested State.
Capital Punishment and Special Circumstances
1. When the offense for which extradition is requested is punishable by death under the laws of the Requesting State and the laws of the Requested State do not permit such punishment for that offense, extradition may be refused unless the Requesting State furnishes such assurances as the Requested State considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed.
2. In special circumstances, having particular regard to the age, health or other personal condition of the person sought, the Executive Authority of the Requested State may refuse extradition if it has reason to believe that extradition will be incompatible with humanitarian considerations.
Extradition of Nationals
1. In the event there is a treaty in force between the Contracting Parties on the execution of foreign penal sanctions, neither Contracting Party may [*14] refuse to extradite its own nationals solely on the basis of their nationality.
2. As long as there is no treaty in force between the Contracting Parties on the execution of foreign penal sanctions, neither Contracting Party shall be bound to extradite its own nationals, but the Executive Authority of the Requested State shall, if not prevented by the law of that State, have the power to extradite them if, in its discretion, it be deemed proper to do so.
3. If extradition is not granted 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 competent authorities for the purpose of prosecution, provided that the offense constitutes a criminal offense under the law of that State and that State has jurisdiction over the offense.
Extradition Procedures and Required Documents
1. The request for extradition shall be made through the diplomatic channel.
2. The request for extradition shall be accompanied by:
a. All available information concerning the identity, nationality, 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 crime;
c. The provisions of the law describing the essential elements and the designation of the offense for which extradition is requested;
d. The provisions of the law describing the punishment for the offense;
e. The provisions of the law providing for jurisdiction when the offense was committed outside of the territory of the Requesting State.
3. A request for extradition relating to a person sought for the purpose of prosecution shall be accompanied by:
a. The original or a certified copy of the warrant of arrest issued by a judge or other competent judicial officer of the Requesting State; and
b. Such evidence as, according to the law of the Requested State, would justify that person’s arrest and committal for trial if the offense had been committed there, including evidence establishing that the person sought is the person to whom the warrant of arrest refers.
4. A request for extradition relating to a convicted person shall be accompanied by:
a. The original or certified copy of the judgment of conviction pronounced by a court of the Requesting State;
b. Evidence establishing that the person sought is the person to whom the conviction refers.
If the person was found guilty but not sentenced, the request for extradition shall be accompanied by a statement to that effect by the appropriate court and by the original or certified copy of the warrant of arrest.
If the convicted person was sentenced, the request for extradition shall be accompanied by the original or certified copy of the sentence imposed, a statement that the sentence has final and binding effect and is enforceable and a statement showing to what extent the sentence has not been carried out.
5. The documents to be submitted in support of the request for extradition, in accordance with this Article and Article 10, shall be translated into the language of the Requested State.
6. The documents which, according to this Article, shall accompany the extradition request, shall be admitted in evidence when:
a. In the case of a request emanating from the United States, they are signed by a judge or other competent officer;
b. In the case of a request emanating from the Kingdom of the Netherlands, they are signed by a judge or other judicial authority and are certified by the principal diplomatic or consular officer of the United States in the Kingdom of the Netherlands.
1. If the competent authority of the Requested State considers that the evidence furnished in support of the request for the extradition of a person sought is not sufficient to fulfill the requirements of this Treaty, that State shall request the submission of necessary additional evidence. The Requested State may set a time limit for the submission of such evidence and, upon the Requesting State’s application, may grant a reasonable extension of such time limit.
2. If the person sought has been taken into custody and the additional evidence or information submitted is not sufficient, or if such evidence or information is not received within the period specified by the Requested State, that person may be discharged from custody. However, such discharge shall not bar either the continued consideration of the request on the basis of supplemented documents, or, if a final decision has already been taken, the submission of a subsequent request for the same offense. In such a case it shall be sufficient if reference is made in the subsequent request to the supporting documents already submitted, provided these documents will be available at the extradition proceedings.
1. In case of urgency, either Contracting Party may request the provisional arrest of any accused or convicted person. Application for provisional arrest may be made either through the diplomatic channel or directly between the United States Department of Justice and the Ministry of Justice in the Netherlands, or the Ministry of Justice in the Netherlands Antilles, as the case may be.
2. The application shall contain: a description of the person sought, including, if available, the person’s nationality; a brief statement of the facts of the case including, if possible, the time and location of the offense; a statement of the existence of a warrant of arrest or a judgment of conviction against that person; and a statement that a request for extradition of the person sought will follow.
3. On receipt of such an application the Requested State shall take the appropriate steps to secure the arrest of the person sought. The Requesting State shall be promptly notified of the result of its application.
4. Provisional arrest shall be terminated if, within a period of 60 days after the apprehension of the person sought, the Requested State has not received the formal request for extradition and the supporting documents mentioned in Article 9.
5. The termination of provisional arrest pursuant to paragraph (4) shall not prejudice the extradition of the person sought if the extradition request and the supporting documents mentioned in Article 9 are delivered at a later date.
Decision and Surrender
1. The Requested State shall promptly communicate through the diplomatic channel to the Requesting State the decision on the request for extradition.
2. The Requested State shall give the reasons for any complete or partial rejection of the request for extradition.
3. If the extradition has been granted, surrender of the person sought shall take place within such time as may be prescribed by the law of the Requested State. The competent authorities of the Contracting Parties shall agree on the time and place of the surrender of the person sought. If, however, that person is not removed from the territory of the Requested State within such time as may be agreed, that person may be set at liberty and the Requested State may subsequently refuse extradition for the same offense.
Delayed Decision and Temporary Surrender
After a decision on a request for extradition has been rendered in the case of a person who is being proceeded against or is serving a sentence in the territory of the Requested State for a different offense, the Requested State may:
a. Defer the surrender of the person sought until the conclusion of the proceedings against that person, or the full execution of any punishment that may be or may have been imposed; or
b. Temporarily surrender the person sought to the Requesting State solely for the purpose of prosecution. The person so surrendered shall be kept in custody while in the Requesting State and returned at the conclusion of the proceedings against that person in accordance with conditions to be determined by mutual agreement of the Contracting Parties.
Requests for Extradition made by Third States
The Executive Authority of the Requested State, upon receiving requests from the other Contracting Party and from one or more third States for the extradition of the same person, either for the same offense or for different offenses, shall determine to which State it will extradite that person.
Rule of Speciality
1. 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, nor be extradited by that State to a third State, unless:
a. That person has left the territory of the Requesting State after extradition and has voluntarily returned to it;
b. That person has not left the territory of the Requesting State within 30 days after being free to do so; or
c. The Executive Authority of the Requested State has consented to detention, trial, or punishment of that person for an offense other than that for which extradition was granted, or to extradition to a third State. For this purpose, the Requested State may require the submission of any document or statement mentioned in Article 9, including any statement made by the extradited person with respect to the offense concerned. These stipulations shall not apply to offenses committed after extradition.
2. If the charge for which the person was extradited is legally altered in the course of proceedings, that person may be prosecuted or sentenced provided the offense under its new legal description is:
a. Based on the same set of facts contained in the extradition request and its supporting documents; and
b. Punishable by the same maximum penalty as, or a lesser maximum penalty than, the offense for which that person was extradited.
If the extradition of a person sought is not obviously precluded by the law of the Requested State and provided the person sought irrevocably agrees in writing to extradition after personally being advised by a judge or competent magistrate of other rights granted in formal extradition proceedings and the protection afforded by them that this person would lose, the Requested State may grant extradition without a formal extradition proceeding having taken place. In this case Article 15 shall not be applicable.
Surrender of Property
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, instruments, objects of value or documents relating to the offense, whether or not used for its execution, or which in any other manner may be evidence for the prosecution, shall at the request of the Requesting State be seized and surrendered upon the granting of the extradition. The property mentioned in this Article shall be handed over even if the extradition cannot be effected due to the death, escape or disappearance of the person sought.
2. The Requested State may condition the surrender of property upon a satisfactory assurance from the Requesting State that the property will be returned to the Requested State as soon as possible.
1. Either Contracting Party may authorize the other transit through its territory of a person surrendered by a third State. The Contracting Party requesting transit shall provide the information mentioned in Article 11, paragraph 2, through channels provided in that Article. No such authorization is required where air transportation is used and no landing is scheduled on the territory of the other Contracting Party.
2. If an unscheduled landing on the territory of the other Contracting Party occurs, transit shall be subject to the provisions of paragraph 1. That Contracting Party may detain the person to be transited for a period of 96 hours while awaiting the request for transit.
1. The Requested State shall review for legal sufficiency documentation in support of an extradition request prior to submission to its judicial authorities and shall present the request of the Requesting State to such authorities.
2. Expenses related to the translation of documents supporting the request for extradition and to the transportation of the person sought shall be borne by the Requesting State. All other expenses related to the extradition request and proceedings shall be borne by the Requested State. 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.
Scope of Application
This Treaty shall apply to offenses encompassed by Article 2 committed before as well as after the date this Treaty enters into force.
Ratification and Entry Into Force
1. This Treaty shall be subject to ratification; the instruments of ratification shall be exchanged in Washington as soon as possible.
2. This Treaty shall enter into force 30 days after the exchange of the instruments of ratification.
3. On entry into force of this Treaty, the Convention for the Extradition of Criminals of June 2, 1887 and the Treaty Extending the Extradition Convention of January 18, 1904, Between the United States of America and the Kingdom of the Netherlands shall cease to have effect, provided that any extradition proceedings pending in the Requested State at the time this Treaty enters into force shall remain effective thereafter.
4. If the instrument of ratification for the Kingdom of the Netherlands does not provide for simultaneous entry into force of the present Treaty for both of its constituent parts, the Agreements mentioned in paragraph 3 above will remain in force between the United States of America and that part of the Kingdom of the Netherlands not yet bound to the present Treaty.
Territory of the Kingdom of the Netherlands
As regards the Kingdom of the Netherlands, the present Treaty shall apply to the territory of the Kingdom in Europe and to the Netherlands Antilles, unless the instrument of ratification of the Government of the Kingdom of the Netherlands, referred to in Article 21, shall otherwise provide.
1. Either Contracting Party may terminate this Treaty at any time by giving notice to the other Party and the termination shall be effective six months after the date of receipt of such notice.
2. Termination of this Treaty by the Government of the Kingdom of the Netherlands may be limited to one of the constituent parts of the Kingdom.
DONE at The Hague on 24 June 1980 in duplicate in the English and Dutch languages, each version being equally authentic. FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA,
FOR THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS,
SCHEDULE OF OFFENSES
1. Murder; assault with intent to commit murder.
3. Malicious wounding; inflicting grievous bodily harm.
5. Rape; indecent assault; incest; bigamy.
6. Unlawful sexual acts with or upon children under the age specified by the laws of both the Requesting and Requested States.
7. Wilful abandonment of a minor or other dependent person when the life of that minor or that dependent person is or is likely to be injured or endangered.
8. Kidnapping; abduction; false imprisonment.
9. Robbery; burglary; larceny; embezzlement.
10. Fraud, including obtaining property, money or valuable securities by false pretenses, deceit, falsehood, or other fraudulent means.
11. Bribery, including soliciting, offering and accepting.
13. Receiving, possessing or transporting anything of value knowing it to have been unlawfully obtained.
14. Offenses relating to criminal breach of trust.
15. An offense against the laws relating to counterfeiting and forgery; including the forging of seals, trademarks, documents, or use of such forgeries.
16. An offense against the laws relating to international transfers of funds.
17. An offense against the laws relating to importation, exportation or transit of goods, articles, or merchandise, including violations of the customs laws.
18. Offenses relating to slavery or the illegal transporting of persons.
19. Offenses against the laws relating to bankruptcy.
20. Offenses against the laws relating to prohibition of private monopoly or unfair trade practices.
21. Perjury; subornation of perjury; making a false statement to a government agency or official.
22. Offenses relating to wilful evasion of taxes and duties.
23. Any act or omission intended or likely to: (a) endanger the safety of an aircraft in flight or of any person on board such aircraft; or (b) destroy or render any aircraft incapable of flight.
24. Any unlawful seizure or exercise of control of an aircraft in flight by force or violence, or by threat of force or violence, or by any other form of intimidation.
25. Any unlawful act or omission intended or that is likely to endanger the safety of any person in a railway train or in any vessel or other means of transportation.
26. Piracy, mutiny, or any mutinous act committed on board a vessel.
27. Malicious damage to property.
28. Offenses against the laws relating to the traffic in, or the possession, production or manufacture of narcotic drugs, cannabis, psychotropic drugs, cocaine and its derivatives, and other dangerous drugs and chemicals.
29. Offenses against laws relating to the poisonous chemicals or substances injurious to health.
30. Offenses against the laws relating to firearms, ammunition, explosives, incendiary devices or nuclear materials.
31. Offenses against the laws relating to the abuse of official authority.
32. Offenses against the laws relating to obstruction of justice.
33. Offenses relating to securities and commodities.
34. Facilitating or permitting the escape of a person from custody.
35. Incitements to violence.
36. Any other act for which extradition may be granted in accordance with the laws of both Contracting Parties.
September 24, 2004, Date-Signed
February 1, 2010, Date-In-Force
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 email@example.com or at one of the offices listed above.