“Hong Kong silent so far on Edward Snowden extradition”

June 22, 2013

The Independent on June 22, 2013 released the following:

Associated Press

“Hong Kong has remained silent thus far on whether former National Security Agency contractor Edward Snowden should be extradited to the United States now that he has been charged with espionage, but some legislators said the decision should be up to the Chinese government.

Edward Snowden, believed to be holed up in Hong Kong, has admitted providing information to the news media about two highly classified NSA surveillance programs.

The Hong Kong government had no immediate reaction to the charges against Snowden. Police Commissioner, Andy Tsang, when was asked about the development, told reporters only that the case would be dealt with according to the law. A police statement said it was “inappropriate” for the police to comment on the case.

When China regained control of Hong Kong in 1997, the former British colony was granted a high degree of autonomy and rights and freedoms not seen on mainland China. However, under the city’s mini constitution Beijing is allowed to intervene in matters involving defence and diplomatic affairs.

Outspoken legislator Leung Kwok-hung said Beijing should instruct Hong Kong to protect Snowden from extradition before his case gets dragged through the court system. Leung also urged the people of Hong Kong to “take to the streets to protect Snowden.”

Another legislator, Cyd Ho, vice-chairwoman of the pro-democracy Labour Party, said China “should now make its stance clear to the Hong Kong SAR (Special Administrative Region) government” before the case goes before a court.

China has urged Washington to provide explanations following the disclosures of National Security Agency programs which collect millions of telephone records and track foreign Internet activity on US networks, but it has not commented on Snowden’s status in Hong Kong.

A formal extradition request, which could drag through appeal courts for years, would pit Beijing against Washington at a time China tries to deflect US accusations that it carries out extensive surveillance on American government and commercial operations.

Snowden’s whereabouts have not been publicly known since he checked out of a Hong Kong hotel on June 10. He said in an interview with the South China Morning Post that he hoped to stay in the autonomous region of China because he has faith in “the courts and people of Hong Kong to decide my fate.” Tsang said in interview broadcast on local television that he could not comment when asked about a local newspaper report that Snowden was in a police “safe house.”

Snowden and his supporters have also spoken of his seeking asylum from Iceland.

A prominent former politician in Hong Kong, Martin Lee, the founding chairman of the Democratic Party, said he doubted whether Beijing would intervene at this stage.

“Beijing would only intervene according to my understanding at the last stage. If the magistrate said there is enough to extradite, then Mr. Snowden can then appeal,” he said.

Lee said Beijing could then decide at the end of the appeal process if it wanted Snowden extradited or not.

The process could become a prolonged legal battle, with Snowden contesting extradition on grounds of political persecution.

Hong Kong lawyer Mark Sutherland said that the filing of a refugee, torture or inhuman punishment claim acts as an automatic bar on any extradition proceedings until those claims can be assessed.

“Some asylum seekers came to Hong Kong 10 years ago and still haven’t had their protection claims assessed,” Sutherland said.”

As International Extradition Lawyer Douglas C. McNabb predicted, the U.S. has charged Mr. Snowden in a Federal Criminal Complaint. He was charged on June 14, 2013 with the following federal crimes:

  • 18 USC 641 – Theft of Government Property
  • 18 USC 793(d) – Unauthorized Communication of National Defense Information
  • 18 USC 798(a)(3) – Willful Communication of Classified Communications Intelligence Information to an Unauthorized Person

A copy of the Snowden Federal Criminal Complaint may be found here.

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Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

We previously discussed the extradition treaty between the United States and Hong Kong here.

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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

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“Snowden extradition battle in Hong Kong could go on for years”

June 22, 2013

Reuters on June 22, 2013 released the following:

“By James Pomfret

(Reuters) – A former U.S. National Security Agency (NSA) contractor charged with spying by the United States and in hiding in Hong Kong is expected to be the subject of a formal extradition request at any time in what could drag into a legal battle lasting years.

Since making his revelations about massive U.S. surveillance programs, legal sources in Hong Kong say Edward Snowden, 30, has sought legal representation from human rights lawyers as he prepares to fight U.S. attempts to force him home for trial.

U.S. authorities have charged Snowden with theft of U.S. government property, unauthorized communication of national defense information and willful communication of classified communications intelligence to an unauthorized person, with the latter two charges coming under the U.S. Espionage Act.

The United States and Hong Kong signed an extradition treaty which came into effect in 1998, a year after Hong Kong returned from British to Chinese rule. Scores of Americans have been sent back home for trial since then.

While espionage and theft of state secrets are not cited specifically in the treaty, equivalent charges could be pressed against Snowden under Hong Kong’s Official Secrets Ordinance, legal experts said.

If Hong Kong authorities did not charge Snowden with an equivalent crime, authorities could not extradite him, lawyers said. In the absence of charges, Snowden was also theoretically free to leave the city, one legal expert said.

Simon Young, a law professor at the University of Hong Kong, said that while the first charge involving theft might readily find equivalence in Hong Kong, the latter two spying offences will likely attract “litigation and dispute” in the courts.

The timeframe for such proceedings remains unclear, but Hectar Pun, a lawyer with human rights expertise, was quoted as saying such an extradition could take three to five years.

Under Hong Kong’s extradition mechanism, a request first goes through diplomatic channels to Hong Kong’s leader, who decides whether to issue an “authority to proceed”. If granted, a magistrate issues a formal warrant for the arrest of Snowden.

Once brought before the court, the judge would decide whether there was sufficient evidence to commit Snowden to trial or dismiss the case, though any decision could be appealed in a higher court.

Snowden could claim political asylum in Hong Kong, arguing he would face torture back home. Article six of the treaty states extradition should be refused for “an offence of a political character”.

“The unfairness of his trial at home and his likely treatment in custody” were important factors to consider for Snowden, said Young, the law professor, on Snowden’s chances of claiming political immunity from extradition.

Should a Hong Kong court eventually call for Snowden’s extradition, Hong Kong’s leader and China could, however, still veto the decision on national security or defense grounds.

Snowden has admitted leaking secrets about classified U.S. surveillance programs, which he said he did in the public interest. Supporters say he is a whistleblower, while critics call him a criminal and perhaps even a traitor.”

As International Extradition Lawyer Douglas McNabb predicted, the U.S. has charged Mr. Snowden in a Federal Criminal Complaint. He was charged on June 14, 2013 with the following federal crimes:

  • 18 USC 641 – Theft of Government Property
  • 18 USC 793(d) – Unauthorized Communication of National Defense Information
  • 18 USC 798(a)(3) – Willful Communication of Classified Communications Intelligence Information to an Unauthorized Person

A copy of the Snowden Federal Criminal Complaint may be found here.

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

We previously discussed the extradition treaty between the United States and Hong Kong here.

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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

————————————————————–

International criminal defense questions, but want to be anonymous?

Free Skype Tel: +1.202.470.3427, OR

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“Confessed NSA Leaker Holed Up In Hong Kong Hotel”

June 10, 2013

NPR on June 10, 2013 released the following:

Confessed NSA Leaker Holed Up In Hong Kong Hotel

by Frank Langfitt”

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Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

We previously discussed the extradition treaty between the United States and Hong Kong here.

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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

————————————————————–

International criminal defense questions, but want to be anonymous?

Free Skype Tel: +1.202.470.3427, OR

Free Skype call:

           Office Locations

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“Beyond Hong Kong: Edward Snowden’s best options for asylum”

June 10, 2013
Edward Snowden
“Edward Snowden explained that he had chosen Hong Kong because it ‘has a strong tradition of free speech’. Photograph: The Guardian/AFP/Getty Images”

The Guardian on June 10, 2013 released the following:

“Choice of Hong Kong as refuge is admired, but speculation remains that he could seek sanctuary in Iceland

[BY] Owen Bowcott and Alexandra Topping

Edward Snowden’s choice of Hong Kong as a refuge from US retribution has been admired by some international lawyers – but it has not quelled speculation that he may seek asylum in another state thereafter, and activists in Iceland are making preparations should the whistleblower try to head there.

Hong Kong is a separate jurisdiction from China and has an extradition treaty with the United States, but the agreement has exceptions – including for crimes deemed to be political. In his video interview with the Guardian, Snowden, 29, an IT contractor, explained that he had chosen the semi-autonomous territory because “Hong Kong has a strong tradition of free speech”.

Under Hong Kong’s Fugitives Offenders Ordinance, however, China can issue an “instruction” to the city’s leader to take or not take action on extraditions where the interests of China “in matters of defence or foreign affairs would be significantly affected”.

One US lawyer, Douglas McNabb, a Houston-based extradition expert, said it would not be difficult for the United States to provide justification for any request. “This guy came out and said: ‘I did it,'” he commented. “[Snowden’s] best defence would probably be that this is a political case instead of a criminal one.”

Other states being mentioned where Snowden might seek sanctuary have included Ecuador, whose embassy in London is currently home to the fugitive WikiLeaks founder Julian Assange, Venezuela and Iceland – where WikiLeaks has received support.

Iceland’s ministry of the interior – which would have the final say on whether Snowden received asylum – denied that it had received any application from the whistleblower.

“We have heard about this, but we cannot speculate,” said Johannes Tomasson, spokesman for the ministry. “At the moment we have received no inquiry or application from Mr Snowden, and we cannot therefore speculate on whether any such application would be granted.”

But there was a groundswell of support for Snowden, according to information activist Smári McCarthy, executive director of the International Modern Media Institute in Iceland (IMMI), which has started making inquiries about how Snowden might be given refuge.

“Of course we have been following the story with morbid fascination and as soon as [he] mentioned Iceland, that was our cue to take action,” said McCarthy. “We are working on the basis that if he were to arrive in Iceland we would have a plan in place and ready to go.”

McCarthy’s organisation has requested a meeting with the minister of the interior and is in discussions with lawyers about the possibility of Snowden gaining protection in Iceland. One concern for campaigners is that Iceland has an extradition treaty with the US and that it could be diplomatically difficult for the small nation to grant asylum.

“It is not sure whether Iceland would be up for the fight as the US is a major trading partner,” he said. “However, it would be rather embarrassing for the States if it cut ties with this small nation because it had complied with its human rights duties.”

Snowden would have to arrive on Icelandic soil or at one of its embassies in order to claim asylum, but would have popular support in Iceland, said McCarthy. “Everywhere in the Icelandic media today we are seeing that support, with people thinking that Snowden is deserving of Iceland’s protection.”

Iceland has a history of providing asylum, famously giving former world chess champion Bobby Fischer Icelandic citizenship after a vote in the country’s parliament and is considered a world leader in human rights. The US government is unlikely to deprive Snowden of his nationality as a punishment since that could undermine any attempt to extradite him back to the United States to face charges.

Rendering anyone stateless against their will is formally forbidden by the Universal Declaration of Human Rights, adopted by the United Nations in 1948, which declares under article 15 that: “(1) Everyone has the right to a nationality; (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

Individuals, however, can voluntarily renounce their US citizenship. In order to do so they must, according to the US state department, “appear in person before a US consular or diplomatic officer, in a foreign country (normally at a US embassy or consulate); and sign an oath of renunciation.”

The regulations add: “Persons intending to renounce US citizenship should be aware that, unless they already possess a foreign nationality, they may be rendered stateless and, thus, lack the protection of any government. They may also have difficulty travelling as they may not be entitled to a passport from any country.””

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
International Extradition Lawyers Videos:

International Extradition – When the FBI Seeks Extradition

International Extradition – Wire Transfer – Email – Telephone Call

————————————————————–

We previously discussed the extradition treaty between the United States and Hong Kong here.

————————————————————–

To find additional global criminal news, please read The Global Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

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

————————————————————–

International criminal defense questions, but want to be anonymous?

Free Skype Tel: +1.202.470.3427, OR

Free Skype call:

           Office Locations

Email:


China (Hong Kong) Extradition Treaty with the United States

April 14, 2011

China (Hong Kong) International Extradition Treaty with the United States

December 20, 1996, Date-Signed

January 21, 1998, Date-In-Force

LETTER OF TRANSMITTAL

THE WHITE HOUSE, March 3, 1997. To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to ratification as a treaty, I transmit herewith the Agreement Between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders signed at Hong Kong on December 20, 1996 (hereinafter referred to as ‘‘the Agreement’’). In addition, I transmit for the information of the Senate, the report of the Department of State with respect to the Agreement. As a treaty, this Agreement will not require implementing legislation.

This Agreement will, upon entry into force, enhance cooperation between the law enforcement communities of the United States and Hong Kong, and will provide a framework and basic protections for extraditions after the reversion of Hong Kong to the sovereignty of the People’s Republic of China on July 1, 1997. Given the absence of an extradition treaty with the People’s Republic of China, this Treaty would provide the means to continue an extradition relationship with Hong Kong after reversion and avoid a gap in law enforcement. It will thereby make a significant contribution to international law enforcement efforts.

The provisions of this Agreement follow generally the form and content of extradition treaties recently concluded by the United States. In addition, the Agreement contains several provisions specially designed in light of the particular status of Hong Kong. The Agreement’s basic protections for fugitives are also made expressly applicable to fugitives surrendered by the two parties before the new treaty enters into force.

I recommend that the Senate give early and favorable consideration to the Agreement and give its advice and consent to its ratification as a treaty.

WILLIAM J. CLINTON.

LETTER OF SUBMITTAL

Department of State

Washington, February 4, 1997

The President
The White House

THE PRESIDENT: I have the honor to submit to you the Agreement between the Government of the United States of America and the Government of Hong Kong For the Surrender of Fugitive Of- fenders, (hereinafter referred to as ‘‘the Agreement’’), signed at Hong Kong on December 20, 1996. I recommend that the Agreement be transferred to the Senate for its advice and consent to ratification as a treaty as soon as possible so that it may become effective prior to the reversion of Hong Kong to the sovereignty of the People’s Republic of China (PRC) on July 1, 1997. Given the absence of an extradition treaty with the PRC, this US-Hong Kong treaty would provide the means to ensure an ongoing extradition relationship with Hong Kong, avoiding a gap in our law enforcement relationship.

The Agreement follows generally the form and content of extradition treaties recently concluded by the United States. It rep- resents 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 and also to address the particular issues related to the status of Hong Kong.

Although entitled an ‘‘Agreement’’ to reflect Hong Kong’s unique juridical status, for purposes of U.S. law, the instrument will be considered to be a treaty, and therefore I am submitting it to you for transmittal to the Senate for advice and consent to ratification. In that regard, I note that Hong Kong is entering into the Agreement with the authorization of ‘‘the sovereign government which is responsible for its foreign affairs.’’ At present, that is the United Kingdom. However, the PRC has also approved the Agreement and authorized its continuation in force after July 1, 1997 through approval of the Sino-British Joint Liaison Group. For ease of reference, the relevant sovereign is referred to in this report as the PRC although there could be a brief period after the treaty enters into force when the sovereign would still be the United Kingdom.

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

Article 2 contains an extensive list of offenses for which the Par- ties agree to surrender fugitive offenders, provided that the offense is punishable by both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty. Significantly, the Agreement follows the modern dual criminality model by including as the last item in the list of offenses, ‘‘any other offense which is punishable under the laws of both Parties by imprisonment or other form of detention for more than one year, or by a more severe penalty, unless surrender for such offense is prohibited by the laws of the requested Party.’’ Inclusion of this dual criminality clause obviates the need to renegotiate or supplement the Agreement as offenses become punishable under the laws of both Parties. In keeping with most recently negotiated U.S. ex- tradition treaties, the Article further provides that in determining whether an offense is an offense under the law of the requested Party, the conduct of the person shall be examined by reference to the totality of the underlying criminal conduct without reference to the elements of the offense prescribed by the law of the requested Party. Article 2(5) contains the standard provision found in other extradition treaties that an offense under military law shall not be considered to be an offense for purposes of paragraph (1) of this Article.

Article 3, like most modern extradition treaties concluded by the United States, provides that surrender shall not normally be re- fused on the ground that the person sought is a national of the requested Party. However, the executive authority of Hong Kong re- serves the right to refuse surrender of nationals of the PRC in cases in which: (1) the requested surrender relates to the defense, foreign affairs or essential public interest or policy of the PRC, or (2) the person sought neither has the right of abode in Hong Kong nor has entered Hong Kong for the purpose of settlement, and the PRC has jurisdiction over the offense and has commenced or completed proceedings for the prosecution of that person. The executive authority of the United States reserves the same right to refuse the surrender of U.S. nationals on grounds of defense, foreign affairs or essential public interest or policy of the United States of America. Article 3(4) provides that in a case in which the person sought by the United States has neither the right of abode in Hong Kong nor has entered Hong Kong for the purpose of settlement, and the PRC has jurisdiction and is investigating an offense by that person, action on the extradition request by the United States may be deferred until the investigation has been expeditiously concluded. Article 3(5) provides that in cases in which extradition is refused on the grounds of its relation to defense, foreign affairs or essential public interest or policy, the requesting Party may request that the case be submitted to the competent authorities of the requested Party who will consider whether to bring a prosecution. The delegations expressed their shared intention that this Article would rarely be invoked.

Under Article 4, when an offense for which surrender is sought is punishable by death under the laws of the requesting Party and is not so punishable under the laws of the requested Party, the requested Party, may refuse surrender unless the other Party provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. The United States has agreed to a similar formulation in other modern extradition treaties.

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

Article 6 incorporates a political offense exception to extradition similar to provisions contained in U.S. Extradition treaties concluded in recent years with a number of other countries. After prohibiting extradition for offenses of a political character, the Article expressly excludes from the reach of the exception an offense for which both Parties are obliged pursuant to a multilateral inter- national agreement to extradite the person sought or to submit the case to their competent authorities for decision as to 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 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, 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 on December 14, 1973, and entered into force February 20, 1977; and hostage taking, pursuant to the International Convention Against the Taking of Hostages, done at New York on December 17, 1979, and entered into force June 3, 1983, and for the United States January 6. The article likewise excludes from the reach of the political offense exception murder or other willful crime against the person of the head of state of the United States or the PRC or a member of the Head of State’s immediate family. A conspiracy or attempt to commit this offense or the multilateral international agreement offenses described above shall also not be considered to be an offense of a political character.

Article 6 further mandates the denial of extradition if the competent authority of the requested Party, which is expressly designated in the Article as the executive authority in the United States, determines (1) that the request was politically motivated, (2) that the request was made for the primary purpose of prosecuting or punishing the person sought on account of his race, religion, nationality or political opinion, or (3) that the person sought is likely to be denied a fair trial or punished on account of his race, religion, nationality, or political opinions. The United States has agreed to the inclusion of such a comprehensive provision in a few other modern extradition treaties.

Article 7, as in the U.S.-Norway extradition treaty, provides that the competent authority of the requested Party, which is designated as the executive authority in the United States, may in its discretion refuse the surrender of a fugitive when it believes that such surrender is likely to entail exceptionally serious consequences related to the age or health of the fugitive. This provision has rarely been accepted by the United States and the delegations expressed their shared expectation that this Article would apply only in the most unusual and extraordinary circumstances.

Article 8 describes the documents that are required to support a request for extradition, following other modern extradition treaties.

Article 9 establishes the procedures under which documents sub- mitted pursuant to Article 8 shall be received and admitted into evidence in the requested Party. These provisions are also similar to those found in other modern extradition treaties.

Article 10, in keeping with other modern extradition treaties, provides for the provisional arrest and detention of the person sought pending receipt of a fully documented extradition, request in conformity with Article 8. Article 10(5) limits the period that the person sought may be so held to no more than sixty days and explicitly provides that the discharge of the person sought from custody due to lapse of time does not prejudice subsequent rearrest and extradition upon later receipt of the extradition request and supporting documents.

Article 11 again reflects U.S. practice in modern extradition treaties, providing that if the executive authority of the requested Party has received requests for the extradition of a fugitive of- fender from more than one country with which either Party has arrangements for the surrender of fugitive offenders, it shall make its decision having regard to all the circumstances, including the relevant provisions of such agreements or arrangements, the place of commission of the offenses, their relative seriousness, the respective dates of the requests, the nationality of the fugitive offender, the nationality of the victim, and the possibility of subsequent surrender to another jurisdiction.

Article 12 contains provisions on representation and expenses that are similar to those found in other modern extradition treaties. Specifically, the requested Party bears ordinary expenses for the legal representation of the requesting Party in any proceedings arising out of a request for surrender of a fugitive offender. In the event that the requesting Party arranges its own additional legal representation and assistance, it bears any additional expenses incurred. Article 12(3) clarifies that neither Party shall make any pecuniary claim against the other Party arising out of the arrest, detention, examination, or surrender of persons sought under the Agreement.

Pursuant to Article 13, a fugitive offender shall be surrendered only if the evidence is found sufficient according to the law of the requested Party either to justify the committal for trial of the per- son sought if the offense of which he had been accused had been committed in the territory of the requested Party or to establish that he is the person found guilty, convicted or sentenced by the courts of the requesting Party. These requirements are found in many modern U.S. extradition treaties and preserve the ‘‘probable cause’’ standard in cases of requests to the United States.

Article 14 sets forth the standard procedures to govern the surrender and return of fugitive offenders, including the release from custody of a fugitive offender if the requesting Party does not take custody of the person claimed on the date agreed to by the Parties. Like other recent extradition treaties, it provides that, if a request is denied in whole or in part, the requested Party, to the extent permitted under its law, is to provide an explanation of the reasons for the denial and, at the request of the requesting Party, copies of pertinent judicial decisions.

Article 15 follows other modern extradition treaties in providing that when a person is surrendered, the requested Party shall, so far as its law allows and subject to conditions it may impose to protect the rights of other claimants, furnish the requesting Party with all sums of money and other articles which may serve as evidence in the requesting Party’s prosecution or which may have been acquired by the person sought as a result of the offense and are in his or her possession.

Article 16 expressly incorporates into the Agreement a typical formulation of the rule of speciality. It provides, subject to specific exceptions, that a person extradited under the Agreement may not be proceeded against, sentenced or detained with a view to the carrying out of a sentence for any offense committed prior to his surrender other than that for which extradition has been granted unless the requested Party consents. Furthermore, the requesting Party may not surrender or transfer such person beyond its jurisdiction for the offense for which his surrender was granted or for an offense committed prior to his original surrender without the consent of the requested Party. In the case of Hong Kong, this con- sent requirement would apply to any proposed surrender or transfer outside of Hong Kong. The limitations imposed under Article 16 do not apply if the person has had an opportunity to leave the jurisdiction of the Party to which he has been surrendered and has not done so within thirty days or leaves and voluntarily returns.

Article 17, which resembles provisions in most recent United States extradition treaties, provides for the temporary or deferred surrender of persons who are serving a sentence or are being prosecuted in the territory of the requested Party.

Article 18 permits surrender without further proceedings if the person sought gives his consent, as is the case in most modern treaties. It further provides that, to the extent required under the law of the requested Party, the rule of speciality in Article 16 shall apply to such transfers. Although U.S. law does not impose speciality limitations in such cases, the Hong Kong negotiators informed the United States delegation that such speciality limitations apply under Hong Kong law.

Article 19 governs the transit through the territory of one Party of a person being surrendered to the other Party by a third state. As with similar provisions in other recent extradition treaties, it provides that either Party may authorize such transit through its jurisdiction and that the person in transit may be detained in custody during the period of transit.

Article 20 contains final clauses dealing with the Agreement’s entry into force, termination and application. Of particular importance, Paragraph 3 makes the Agreement’s restrictions on capital punishment and on prosecutions and transfers for offenses other than those for which extradition was granted, set forth in Articles 4 and 16, expressly applicable to fugitive offenders who have been surrendered between the parties prior to the Agreement’s entry into force. It also specifies that the Agreement would apply to requests for surrender pending at the date of its entry into force.

Paragraph 1 provides for entry into force thirty days after the date on which the Parties have notified each other in writing that their respective requirements for entry into force have been complied with. Such mutual notification will therefore need to take place no later than May 30 in order to avoid a law enforcement gap upon reversion on July 1.

Paragraph 2 provides for termination six months after receipt of written notice by either Party.

Paragraph 4, like the parallel provision in almost all recent United States ex- tradition treaties, stipulates that the Agreement is retroactive, in the sense that it applies to offenses committed both before and after its entry into force, provided that the offense was an offense under the laws of both parties at the time the request is made.

A Technical Analysis explaining in detail the provisions of the Agreement 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,

MADELEINE ALBRIGHT.

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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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