EXTRADITION TREATY WITH THE PHILIPPINESSenate Consideration of Treaty Document 104-16
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[Senate Treaty Document 104-16] [From the U.S. Government Publishing Office] 104th Congress 1st SENATE Treaty Doc. 104-016 Session _______________________________________________________________________ EXTRADITION TREATY WITH THE PHILIPPINES __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting THE EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES, SIGNED AT MANILA ON NOVEMBER 13, 1994. September 5, 1995.--Treaty was read the first time and, together with the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate. LETTER OF TRANSMITTAL ---------- The White House, September 5, 1995. To the Senate of the United States: With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Extradition Treaty Between the Government of the United States of America and the Government of the Republic of the Philippines, signed at Manila on November 13, 1994. In addition, I transmit for the information of the Senate, the report of the Department of State with respect to the Treaty. As the report explains, the Treaty will not require implementing legislation. Together with the Treaty Between the Government of the United States of America and the Government of the Republic of the Philippines on Mutual Legal Assistance in Criminal Matters, also signed November 13, 1994, this Treaty will, upon entry into force, enhance cooperation between the law enforcement communities of both countries. It will thereby make a significant contribution to international law enforcement efforts. The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States. I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification. William J. Clinton. LETTER OF SUBMITTAL ---------- Department of State, Washington, August 4, 1995. The President, The White House. The President: I have the honor to submit to you the Extradition Treaty between the Government of the United States of America and the Government of the Republic of the Philippines (the ``Treaty''), signed at Manila on November 13, 1994. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification. The Treaty follows generally the form and content of extradition treaties recently concluded by the United States. It represents part of a concerted effort by the Department of State and the Department of Justice to develop modern extradition relationships to enhance the United States' ability to prosecute serious offenders including, especially, narcotics traffickers and terrorists. The Treaty marks a significant step in bilateral cooperation between the United States and the Philippines. Upon entry into force, it will become the first bilateral extradition treaty in effect between the United States and the Philippines. (The United States signed an earlier extradition treaty with the Philippines on November 27, 1981. However, that treaty, which now is outmoded, was not forwarded to the Senate for advice and consent to ratification.) The Treaty can be implemented without legislation. Article 1 obligates each Contracting Party to extradite to the other, pursuant to the provisions of the Treaty, any person charged with or convicted of an extraditable offense. Article 2(1) defines an extraditable offense as one punishable under the laws of both Contracting Parties by deprivation of liberty for a period of more than one year, or by a more severe penalty. Use of such a ``dual criminality'' clause rather than a list of offenses covered by the Treaty obviates the need to renegotiate or supplement the Treaty as additional offenses become punishable under the laws of both Contracting Parties. Article 2(2) defines an extraditable offense to include also an attempt or a conspiracy to commit, aiding or abetting, counselling, causing or procuring the commission of or being an accessory before or after the fact to an extraditable offense. For such crimes, the Treaty accommodates the differences between U.S. and Philippine criminal law (the Philippines, for example, has no general conspiracy statute) by creating an exception to the general dual-criminality requirement and permitting extradition if the crime is punishable under the laws of the Requesting State by deprivation of liberty for a period of more than one year, or by a more severe penalty, and the underlying offense is an extraditable offense. Additional flexibility is provided by Article 2(3), which provides that an offense shall be considered an extraditable offense: whether or not the laws in the Contracting Parties place the offense within the same category of offenses or describe the offense by the same terminology; and whether or not the offense is one for which United States federal law requires the showing of such matters as interstate transportation or use of the mails or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court. With regard to offenses committed outside the territory of the Requesting State, Article 2(4) provides a basis for granting extradition if the Requested State's laws provide for punishment of an offense committed outside of its territory in similar circumstances or if the executive authority of the Requested State, in its discretion, decides to submit the case to its courts for the purpose of extradition. Finally, article 2(5) provides that if extradition is granted for an extraditable offense, it shall also be granted for other offenses specified in the request that do not meet the minimum penalty requirement, provided that all other extradition requirements are met. As is customary in extradition treaties, Article 3 incorporates a political offense exception to the obligation to extradite. Article 3(1) states generally that extradition shall not be granted for political offenses. Article 3(2) specifies three categories of offenses that shall not be considered to be political offenses: (a) a murder or other willful crime against the person of a Head of State of one of the Contracting Parties, or of a member of the Head of State's family; (b) an offense for which both Contracting Parties are obliged pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their competent authorities for a decision as to prosecution; and (c) a conspiracy or attempt to commit any of the offenses described above, or aiding and abetting a person who commits or attempts to commit such offenses. The Treaty's political offense exception is substantially identical to that contained in several other modern extradition treaties, including the treaty with Jordan, which recently received Senate advice and consent. Offenses covered by Article 3(2)(b) include: --aircraft hijacking covered by The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague December 16, 1970, and entered into force October 14, 1971 (22 U.S.T. 1641; T.I.A.S. No. 7192); --aircraft sabotage covered by the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal September 23, 1971, and entered into force January 26, 1973, (24 U.S.T. 564; T.I.A.S. No. 7570); --crimes against internationally protected persons, including diplomats, covered by the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, done at New York December 14, 1973, and entered into force February 20, 1977 (28 U.S.T. 1975; T.I.A.S. No. 8532); --hostage-taking covered by the International Convention against the Taking of Hostages, done at New York December 17, 1979; entered into force June 3, 1983, and for the United States January 6, 1985 (T.I.A.S. No. 11081); and --maritime terrorism covered by the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome March 10, 1988; entered into force March 1, 1992, and for the United States March 6, 1995. Article 3(3) provides that extradition shall not be granted if the executive authority of the Requested State determines that the request was politically motivated or that the offense is a military offense that is not punishable under non-military penal legislation (for example, desertion). Article 4 bars extradition when the person sought has been tried and convicted or acquitted in the Requested State for the same offense, but does not bar extradition if the competent authorities in the Requested State have declined to prosecute or have decided to discontinue criminal proceedings against the person sought. Under Article 5, when an offense for which surrender is sought is punishable by death under the laws of the Requesting State and the laws in the Requested State do not permit such punishment for that offense, the Requested State may refuse extradition unless the Requesting State provides such assurances as the Requested State considers sufficient that if the death is imposed, it will not be carried out. It further provides that if the Requesting State provides such an assurance, the death penalty, if imposed by the courts of the Requesting State, shall not be carried out. Article 6 provides that extradition shall not be refused on the ground that the person sought is a citizen of the Requested State. Article 7 establishes the procedures and describes the documents that are required to support an extradition request. The Article requires that all requests be submitted through the diplomatic channel. Article 7(5) establishes the procedures under which documents submitted pursuant to this Article shall be received and admitted into evidence. Article 8 provides that all documents submitted by either Contracting Party shall be in English, or shall be translated into English by the Requesting State. Article 9 sets forth procedures for the provisional arrest and detention of a person sought pending presentation of the formal request for extradition. Article 9(4) provides that if the Requested State's executive authority has not received the request for extradition and supporting documentation within sixty days after the provisional arrest, the person may be discharged from custody. However, Article 9(5) provides explicitly that discharge from custody pursuant to Article 9(4) does not prejudice subsequent rearrest and extradition upon later delivery of the extradition request and supporting documents. Article 10 specifies the procedures governing surrender and return of persons sought. It requires the Requested State to provide prompt notice to the Requesting State through the diplomatic channel regarding its extradition decision. If the request is denied in whole or in part, Article 10 also requires the Requesting State to provide information regarding the reasons therefor. If extradition is granted, the person sought must be removed from the territory of the Requested State within the time prescribed by the law of the Requested State. Article 11 concerns temporary and deferred surrender. If a person whose extradition is sought is being prosecuted or is serving a sentence in the Requested State, that State may temporarily surrender the person to the Requesting State solely for the purpose of prosecution. Alternatively, the Requested State may postpone the extradition proceedings until its prosecution has been concluded and the sentence has been served. Article 12 sets forth a non-exclusive list of factors to be considered by the Requested State in determining to which State to surrender a person sought by more than one State. Article 13 sets forth the rule of speciality for this Treaty. It provides, subject to specific exceptions, that a person extradited under the Treaty may not be detained, tried, or punished for an offense other than that for which extradition has been granted, unless a waiver of the rule is granted by the executive authority of the Requested State. Similarly the Requesting State may not extradite such person to a third state for an offense committed prior to the original surrender unless the Requested State consents. These restrictions do not apply if the extradited person leaves the Requesting State after extradition and voluntarily returns to it or fails to leave the Requesting State within ten days of being free to do so. Article 14 permits surrender to the Requesting State without further proceedings if the person sought provides written consent thereto. Article 15 provides, to the extent permitted under the law of the Requested State, for the seizure and surrender to the Requesting State of property connected with the offense for which extradition is granted. Such property may be surrender even when extradition cannot be effected due to the death, disappearance, or escape of the person sought. Surrender of property may be deferred if it is needed as evidence in the Requested State and may be conditioned upon satisfactory assurances that it will be returned. Article 15 imposes an obligation to respect the rights of third parties in affected property. Article 16 governs the transit through the territory of one Contracting Party of a person being surrendered to the other State by a third State. Article 17 contains provisions on representation and expenses that are similar to those found in other modern extradition treaties. Specifically, the Requested State is required to bear expenses for the legal representation of the Requesting State in any proceedings arising out of a request for extradition. The Requesting State is required to bear the expenses related to the translation of documents and the transportation of the person surrendered. Article 17(3) clarifies that neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought under the Treaty. Article 18 states that the United States and Philippine Departments of Justice may consult with each other directly in connection with the procession of individual cases and in furtherance of maintaining and improving Treaty implementation procedures. Article 19, like the parallel provision in almost all recent United States extradition treaties, states that the Treaty shall apply to offenses committed before as well as after the date the Treaty enters into force. Ratification and entry into force are addressed in Article 20. That Article provides that the Treaty shall be subject to ratification and that the instruments of ratification shall be exchanged as soon as possible, whereupon the Treaty shall enter into force. Under Article 21, either Contracting Party may terminate the Treaty at any time upon written notice to the other party, with termination effective six months after the date of receipt of such notice. A Technical Analysis explaining in detail the provisions of the Treaty is being prepared by the United States negotiating delegation, consisting of representatives from the Departments of Justice and State, 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. Respectifully submitted, Peter Tarnoff.