Ex. Rept. 115-5 - EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF KOSOVO115th Congress (2017-2018)

115th Congress     }                               {      Exec. Rept.
                                 SENATE
 2d Session        }                               {            115-5

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



 
   EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF 
          AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF KOSOVO

                                _______
                                

                  June 7, 2018.--Ordered to be printed

                                _______
                                

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

                                 REPORT

                    [To accompany Treaty Doc. 115-2]

    The Committee on Foreign Relations, to which was referred 
the Extradition Treaty Between the Government of the United 
States of America and the Government of the Republic of Kosovo, 
signed at Pristina on March 29, 2016 (Treaty Doc. 115-2), 
having considered the same, reports favorably thereon with one 
declaration and recommends that the Senate give its advice and 
consent to the ratification thereof as set forth in this report 
and the accompanying resolution of advice and consent to 
ratification.


                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Summary and Discussion of Key Provisions.........................1
III. Entry into Force and Termination.................................2
 IV. Committee Action.................................................3
  V. Committee Comments...............................................3
 VI. Explanation of Extradition Treaty with Kosovo....................3
VII. Text of Resolution of Advice and Consent to Ratification........10

                               I. Purpose

    The purpose of the Extradition Treaty with the Republic of 
Kosovo (hereafter ``the Treaty'') is to impose mutual 
obligations to extradite fugitives at the request of a party 
subject to conditions set forth in the Treaty.

              II. Summary and Discussion of Key Provisions

    The United States is currently a party to over 100 
bilateral extradition treaties, including a treaty with the 
Kingdom of Servia which was signed on October 25, 1901, and 
entered into force on June 12, 1902 (hereafter the ``1901 
treaty''). The 1901 treaty applies to the Republic of Kosovo as 
a successor state to the former Socialist Federal Republic of 
Yugoslavia.
    The treaty before the Senate is designed to replace, and 
thereby modernize, the century-old extradition treaty with the 
Kingdom of Servia. It was signed in March 2016 and submitted to 
the Senate on January 17, 2017. In general, the Treaty follows 
a form used in several other bilateral extradition treaties 
approved by the Senate in recent years. It contains two 
important features which are not in the 1901 treaty. First, the 
Treaty contains a ``dual criminality'' provision, which 
requires a party to extradite a fugitive whenever the offense 
is punishable under the laws of both parties by deprivation of 
liberty for a maximum period of more than one year. This 
provision replaces the list of offenses specifically identified 
in the 1901 treaty. This more flexible provision ensures that 
newly-enacted criminal offenses are covered by the Treaty, 
thereby obviating the need to amend it as offenses are 
criminalized by the Parties.
    Second, the Treaty provides for the extradition of 
nationals. Specifically, Article 1 states that the extradition 
obligations under the treaty ``shall apply regardless of 
nationality, including with respect to the extradition of 
nationals of the Requested State.'' This contrasts with Article 
V of the 1901 treaty, which does not obligate a party to 
extradite its own citizens or subjects. Many countries have, 
historically, refused to extradite nationals.
    The Treaty contains another provision worth noting. 
Consistent with U.S. policy and practice in recent years, the 
Treaty narrows the political offense exception. The political 
offense exception (a long-standing exception in U.S. 
extradition practice) bars extradition of an individual for 
offenses of a ``political'' nature. The Treaty with Kosovo 
retains the political offense exception in Article 3, but 
provides that certain crimes shall not be considered political 
offenses, including murder, serious sexual assault, kidnapping, 
and offenses for which both parties have an obligation to 
extradite under a multilateral agreement.
    The Treaty contains a provision related to the death 
penalty. Under Article 6, when extradition is sought for an 
offense punishable by death in the Requesting State and is not 
punishable by death in the Requested State, the Requested State 
may refuse extradition unless the Requesting State provides an 
assurance that the person sought for extradition will not be 
executed. This provision is found in many U.S. extradition 
treaties, as many treaty partners do not impose the death 
penalty under their laws, and object to its application to 
fugitives whom they extradite to the United States.
    Finally, the terms of Article 15 Rule of Specialty clearly 
bar onward extradition unless the Requested State consents to 
the onward extradition or surrender.

                 III. Entry into Force and Termination

    Under Article 21, the Treaty enters into force upon the 
exchange of the instruments of ratification. Under Article 22, 
either party may terminate the treaty on written notice; 
termination will be effective six months after the date of such 
notice.

                          IV. Committee Action

    The committee reviewed the Treaty at a hearing on December 
13, 2017, at which representatives of the Departments of State 
and Justice testified. The committee considered the Treaty on 
March 20, 2018, and ordered it favorably reported by voice 
vote, with the recommendation that the Senate give its advice 
and consent to the ratification of the Treaty subject to the 
declaration set forth in the resolution of advice and consent 
to ratification.

                         V. Committee Comments

    The committee recommends favorably the Treaty with the 
Republic of Kosovo. It modernizes a treaty that is over a 
century old, and provides a more flexible ``dual criminality'' 
provision which will incorporate a broader range of criminal 
offenses than is covered under the current treaty in place with 
the Republic of Kosovo.

           VI. Explanation of Extradition Treaty with Kosovo

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

TECHNICAL ANALYSIS OF THE EXTRADITION TREATY BETWEEN THE GOVERNMENT OF 
  THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF 
                                 KOSOVO

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

Article 1--Obligation To Extradite

    Article 1 obligates each State to extradite to the other 
State persons sought by the Requesting State for prosecution or 
for imposition or service of a sentence for an extraditable 
offense. Article 1(2) establishes that extradition shall not be 
refused based on the nationality of the person sought.

Article 2--Extraditable Offenses

    Article 2 defines extraditable offenses. Under Article 
2(1), an offense is extraditable if it is punishable under the 
laws of both States by deprivation of liberty for a period of 
more than one year or by a more severe penalty. This 
formulation is consistent with the modern ``dual criminality'' 
approach. The new Treaty eliminates the requirement of the 1901 
Treaty that the offense be among those listed in the Treaty. 
The dual criminality formulation also obviates the need to 
renegotiate or supplement the Treaty as additional offenses 
become punishable under the laws of both States. It ensures 
comprehensive coverage of criminal conduct for which 
extradition may be sought.
    Article 2(2) is designed to include within the realm of 
extraditable offenses an attempt or conspiracy to commit, or 
participation in the commission of, offenses described in 
Article 2(1). By using the broad term ``participation,'' the 
Treaty covers such offenses as aiding, abetting, counseling, or 
procuring the commission of an offense, as well as being an 
accessory to an offense, at whatever stage of development of 
the criminal conduct and regardless of the alleged offender's 
degree of involvement.
    Additionally, Article 2(3) identifies a number of 
situations in which an offense will be extraditable despite 
potential differences in the criminal laws of both States. For 
instance, an offense shall be extraditable whether or not the 
laws of the Requesting and Requested States place the acts 
constituting the offense within the same category of offenses 
or describe the offense by the same terminology. This provision 
also makes explicit that an offense is extraditable even where 
the evidence provided does not support the existence of certain 
facts that are merely necessary to establish U.S. federal 
jurisdiction, such as evidence of interstate transportation or 
use of the mails or of other facilities affecting interstate or 
foreign commerce. This clarifies an important issue for the 
United States in requesting extradition for certain federal 
crimes. In addition, an offense involving tax fraud or tax 
evasion, customs duties, or import/export controls shall be 
extraditable regardless of whether the Requested State provides 
for the same sort of taxes, duties, or controls.
    Article 2(4) addresses issues of territorial jurisdiction. 
It specifies that where the Requesting State seeks extradition 
for an offense that occurred outside its territory, the 
Requested State shall grant extradition if the laws of the 
Requested State would provide for punishment of the 
extraterritorial offense in similar circumstances. If the 
Requested State's laws would not provide for punishment of the 
extraterritorial offense in similar circumstances, the 
Requested State nonetheless retains discretion to grant 
extradition provided the other requirements of the Treaty are 
met.
    Article 2(5) prohibits the Requested State from refusing 
extradition for the sole reason that the offense was committed 
on its own territory. The U.S. negotiating team proposed this 
provision in order to satisfy a provision of Kosovo's domestic 
law that permits extradition for offenses committed on Kosovo's 
territory only when expressly required by an extradition treaty 
or other binding international agreement. Kosovo has previously 
refused to grant extradition to the United States on this basis 
under the existing treaty.
    Article 2(6) prescribes that if extradition is granted for 
an extraditable offense, it shall also be granted for any other 
offense specified in the request even if the latter offense is 
punishable by a maximum of one year's deprivation of liberty or 
less, provided that all other requirements for extradition are 
met.
    Article 2(7) provides that where the extradition request is 
for service of a sentence of imprisonment for an extraditable 
offense, the Requested State may only grant extradition if at 
least four months imprisonment remains to be served.

Article 3--Political and Military Offenses

    Article 3 establishes an exception for political and 
military offenses. Article 3(1) states generally that 
extradition shall not be granted if the offense for which 
extradition is requested is a political offense.
    Article 3(2), however, describes five categories of 
offenses that shall not be considered political offenses. A 
near identical list of these limitations was included in the 
extradition treaties between the United States and Chile 
(signed 2013) and the United States and the Dominican Republic 
(signed 2015). The list of limitations in each of these most 
recent treaties is slightly broader than similar lists that 
appear in other modern treaties, including those with Hungary 
(signed 1994), Poland (signed 1997), the United Kingdom (signed 
2003), Bulgaria (signed 2007) and Romania (signed 2007). In 
addition to offenses that involve the possession, placement, 
use or threatened use of an explosive, incendiary, or 
destructive device when such device is capable of endangering 
life or causing substantial bodily harm or substantial property 
damage, Article 3(2)(d) now also establishes that political 
offenses cannot include offenses involving similarly serious 
biological, chemical or radiological agents. Further, Article 
3(2)(e) makes clear that conspiracy or attempt to commit non-
political offenses, or aiding or abetting another person who 
commits or attempts to commit such offenses, also shall not be 
considered political offenses. This slight narrowing of 
extraditable offenses to exclude political offenses aligns with 
a major priority of the United States to ensure that an 
overbroad definition of ``political offense'' does not impede 
the extradition of terrorists.
    Notwithstanding Article 3(2), Article 3(3) provides that 
extradition shall not be granted if the competent authority of 
the Requested State determines that the request was politically 
motivated.
    Under Article 3(4), the executive authority of the 
Requested State may refuse extradition for offenses under 
military law that are not offenses under ordinary criminal law. 
Desertion would be an example of such an offense.

Article 4--Prior Prosecution

    Article 4(1) prohibits extradition in instances where a 
person sought has been previously convicted or acquitted by the 
Requested State for the offense for which extradition is 
requested. Under Article 4(2), however, a person shall not be 
considered to have been convicted or acquitted in the Requested 
State when the authorities of the Requested State: (a) have 
decided not to proceed against the person sought for the acts 
for which extradition is requested; (b) have decided to 
discontinue any criminal proceedings against the person for 
those acts; or (c) are still investigating or proceeding 
against the person sought for those acts.
    Article 4(3) applies to circumstances where the Requested 
State has not convicted or acquitted the person sought, but has 
an international agreement with a third state for reciprocal 
recognition and enforcement of criminal judgements. In such 
cases, the Requested State may deny an extradition request if 
the person sought has been convicted or acquitted in that third 
state for the same crime for which extradition was requested.

Article 5--Lapse of Time

    Article 5 provides that only the laws of the Requesting 
State regarding lapse of time shall be considered for purposes 
of deciding whether or not to grant extradition. In this 
regard, the Requested State is bound by the statement of the 
Requesting State that the statute of limitations has not 
expired.

Article 6--Punishment

    Article 6 addresses punishment. When an offense for which 
extradition is sought is punishable by death under the laws of 
the Requesting State but not under the laws of the Requested 
State, the Requested State may refuse extradition unless the 
Requesting State provides assurances that: (a) the death 
penalty shall not be imposed on the person sought, or (b) the 
death penalty, if imposed, shall not be carried out against the 
person sought. If either condition is satisfied, the Requested 
State must comply with the extradition request, and the 
Requesting State must abide by its assurances.

Article 7--Extradition Procedures and Required Documents

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

Article 8--Admissibility of Documents

    Article 8 sets out the procedures for the certification and 
admissibility of documents in extradition proceedings.

Article 9--Translation

    Article 9 requires all documents submitted by the 
Requesting State under the Treaty to be accompanied by an 
official translation into a language of the Requested State, 
unless otherwise agreed.

Article 10--Provisional Arrest

    Article 10 provides that, in cases of urgency, the 
Requesting State may request the provisional arrest of 
fugitives and sets forth the procedures for making such a 
request pending presentation of the formal extradition request. 
Article 10(2) specifies the information that must accompany a 
provisional arrest request. Article 10(3) provides that the 
Requesting State shall be notified without delay of the date of 
a provisional arrest or the reasons why the Requested State 
cannot proceed with the request. Article 10(4) permits the 
release of the person provisionally arrested if the executive 
authority of the Requested State does not receive the formal 
extradition request and supporting documents within 60 days of 
the date on which the person was provisionally arrested. 
Article 10(5) specifies that for the purposes of applying the 
60-day time limitation in Article 10(4), receipt of the formal 
extradition request and supporting documents by the embassy of 
the Requested State located in the Requesting State constitutes 
receipt by the executive authority of the Requested State. 
Article 10(6) makes clear that the release of a person pursuant 
to Article 10(4) does not prevent the person's re-arrest and 
extradition if the Requested State receives the formal 
extradition request and supporting documents at a later date.

Article 11--Decision and Surrender

    Article 11 requires the Requested State to promptly notify 
the Requesting State of its decision regarding an extradition 
request. If the Requested State denies extradition, Article 
11(2) requires the Requested State to explain the reasons for 
denial. If the Requested State agrees to grant extradition, 
Article 11(3) requires the Requested and Requesting States to 
coordinate the date and place for surrendering the person 
sought. Article 11(4) provides that if the person to be 
surrendered is not removed from the territory of the Requested 
State within the time prescribed by the Requested State's laws, 
the Requested State may discharge the person sought from 
custody and subsequently refuse extradition for the same 
offense.

Article 12--Deferral of Extradition Proceedings and Deferred or 
        Temporary Surrender

    Article 12 addresses deferred extradition proceedings as 
well as deferred and temporary surrender of the person sought. 
Under Article 12(1), if the person sought is being proceeded 
against in the Requested State, the Requested State may defer 
the extradition proceedings until its own proceedings have been 
concluded. Article 12(2) addresses circumstances where 
extradition proceedings have concluded and extradition has been 
authorized, but the person sought is being proceeded against or 
is serving a sentence in the Requested State. In such cases, 
the Requested State may either defer the surrender of the 
person sought or temporarily surrender the person to the 
Requesting State for the purpose of prosecution. Article 12(3) 
explains that if the Requested State elects to defer surrender, 
it may detain the person sought until surrender. Under Article 
12(4), however, if the Requested State elects to temporarily 
surrender the person to the Requesting State, the Requesting 
State must detain the temporarily surrendered person during 
proceedings and return the person when proceedings conclude. 
The person's return to the Requested State shall not require 
any further extradition request or proceedings. Moreover, upon 
return to the Requested State, the time a person served in the 
temporary custody of the Requesting State may be deducted from 
the remaining time to be served in the Requested State, 
according to the laws of the Requested State.

Article 13--Requests for Extradition or Surrender Made by Several 
        States

    Pursuant to Article 13, if the Requested State receives 
extradition requests for the same person from the Requesting 
State and from any other State or States, either for the same 
offense or for different offenses, the executive authority of 
the Requested State shall determine to which State, if any, it 
will surrender that person. Article 13 requires the Requested 
State to consider a list of non-exclusive factors when making 
its decision.

Article 14--Seizure and Surrender of Items

    Article 14 provides that, subject to certain conditions, 
the Requested State may seize and surrender to the Requesting 
State all items that are connected with the offense for which 
extradition is sought or that may be required as evidence in 
the Requesting State.

Article 15--Rule of Specialty

    Article 15(1) sets forth the rule of specialty, which 
prohibits a person extradited under the Treaty from being 
detained, tried, or punished in the Requesting State, except 
where the detention, trial, or punishment: (a) is for an 
offense for which extradition was granted, or for a differently 
denominated offense carrying the same or lesser penalty that is 
based on the same facts as the offense for which extradition 
was granted, provided such offense is extraditable or is a 
lesser included offense; (b) is for an offense committed after 
that person's extradition to the Requesting State; or (c) 
occurs with the consent of the competent authority of the 
Requested State. If the Requested State consents to the 
person's detention, trial or punishment for a different 
offense, the Requested State may require the Requesting State 
to submit the documentation required under Article 7.
    Similarly, Article 15(2) provides that a person extradited 
under the Treaty may not be the subject of onward extradition 
or surrender for any offense committed prior to extradition, 
unless the Requested State consents. This provision would 
preclude the Republic of Kosovo from transferring to a third 
State or an international tribunal a fugitive that the United 
States surrendered to the Republic of Kosovo, unless the United 
States consents. Article 15(3), however, permits the Requesting 
State to detain, try, punish, extradite, or surrender the same 
person if that person: (a) leaves and voluntarily returns to 
the Requesting State, or (b) chooses not to leave the 
Requesting State within 20 days of the day that person is free 
to leave. Article 15(4) provides that the rule of specialty 
provisions in this Article do not apply if the person sought 
waives extradition under Article 16(a).

Article 16--Waiver and Simplified Extradition

    Article 16 allows the Requested State to expedite the 
transfer of the person whose extradition is sought to the 
Requesting State. If the person waives extradition, a judicial 
officer may direct the person's transfer to the Requesting 
State without further proceedings. If the person consents to 
extradition or to a simplified extradition proceeding, the 
Requested State may surrender the person as expeditiously as 
possible.

Article 17--Transit

    Article 17 allows either State to authorize transportation 
through its territory of a person being extradited or otherwise 
transferred to the other State by a third State or from the 
other State to a third State for the purposes of prosecution, 
imposition of a sentence, or service of a sentence. It also 
specifies the procedures for requesting such transit and makes 
clear that a person who is being transported pursuant to this 
Article shall be detained during the period of transit. Under 
Article 17(2), authorization is not required when the other 
State only uses air transportation and no landing is scheduled 
on the State's territory. Should an unscheduled landing occur, 
however, the State may require submission of a formal transit 
request within 96 hours; during that time, the State must take 
all measures necessary to prevent the person being transferred 
from absconding.

Article 18--Representation and Expenses

    Article 18 requires the Requested State to advise, assist, 
appear in court on behalf of, and represent the interests of, 
the Requesting State in any proceedings arising out of an 
extradition request. Additionally, the Requested State must 
bear all expenses incurred in that State in connection with the 
extradition proceedings, except for expenses related to 
translation of documents and transportation of the person 
surrendered.

Article 19--Consultation

    Article 19 provides that the U.S. Department of Justice and 
the Ministry of Justice of the Republic of Kosovo may consult 
with each other directly in connection with individual cases 
and in furtherance of efficient implementation of the Treaty.

Article 20--Application

    Article 20 establishes that the Treaty applies to offenses 
committed both before and after the date it enters into force.

Article 21--Ratification and Entry into Force

    Article 21 notes that the Treaty is subject to ratification 
and shall enter into force upon the exchange of the instruments 
of ratification. Article 21(3) provides that, upon entry into 
force, the Treaty will supersede the 1901 Treaty with respect 
to all requests submitted on or after the date of ratification. 
With respect to all pending requests made under the 1901 
Treaty, subparagraphs (3) and (4) provide that the Treaty shall 
supersede the 1901 Treaty, except that the provisions of the 
1901 Treaty relating to required documents and the 
admissibility and translation of documents shall apply if the 
extradition request and supporting documents have already been 
submitted to the Requested State at the time the Treaty enters 
into force.

Article 22--Termination

    Under Article 22, either State may terminate the Treaty by 
giving written notice to the other State through the diplomatic 
channel. The termination shall be effective six months after 
the date of such notice.

                 VII. Text of Resolution of Advice and 
                        Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION.

    The Senate advises and consents to the ratification of the 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of Kosovo, signed 
at Pristina on March 29, 2016 (Treaty Doc. 115-2), subject to 
the declaration of section 2.

SEC. 2. DECLARATION.

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

                                  [all]