EXTRADITION TREATY WITH SWITZERLANDSenate Consideration of Treaty Document 104-9
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[Senate Treaty Document 104-9] [From the U.S. Government Printing Office] 104th Congress 1st SENATE Treaty Doc. Session 104-9 _______________________________________________________________________ EXTRADITION TREATY WITH SWITZERLAND __________ 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 SWISS CONFEDERATION, SIGNED AT WASHINGTON ON NOVEMBER 14, 1990 June 12, 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, June 9, 1995. To the Senate of the United States: With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Extradition Treaty Between the Government of the United States of America and the Government of the Swiss Confederation, signed at Washington on November 14, 1990. Also transmitted for the information of the Senate is the report of the Department of State with respect to the Treaty. The Treaty is designed to update and standardize the conditions and procedures for extradition between the United States and Switzerland. Most significantly, it substitutes a dual-criminality clause for a current list of extraditable offenses, so that the new Treaty will cover numerous offenses not now covered by our extradition treaty with Switzerland, including certain narcotics offenses, important forms of white collar crime, and parental child abduction. The Treaty also provides a legal basis for temporarily surrendering prisoners to stand trial for crimes against the laws of the Requesting State. The Treaty further represents an important step in combating terrorism by excluding from the scope of the political offense exception offenses typically committed by terrorists for which both the United States and Switzerland have an obligation under a multilateral international agreement to extradite or submit to their authorities for the purpose of prosecution. These offenses include aircraft hijacking, aircraft sabotage, crimes against internationally protected persons (including diplomats), and hostage-taking. The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States. Upon entry into force, it will supersede the Extradition Treaty of May 14, 1900, and the Supplementary Extradition Treaties of January 10, 1935, and January 31, 1940, Between the United States of America and the Swiss Confederation. This Treaty will make a significant contribution to international cooperation in law enforcement. I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification. William J. Clinton. LETTER OF SUBMITTAL ---------- Department of State, Washington, May 1, 1995. The President, The White House. The President: I have the honor to submit to you the Extradition Treaty between the Government of the United States of America and the Government of the Swiss Confederation signed at Washington on November 14, 1990. I recommend that this 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 a concerted effort by the Department of State and the Department of Justice to modernize the legal tools available for the extradition of serious offenders such as narcotics traffickers and terrorists. Upon entry into force, this Treaty will supersede the Extradition Treaty between the United States of America and Switzerland, signed at Washington on May 14, 1900, and the Supplementary Extradition Treaties, signed at Washington on January 10, 1935, and at Bern on January 31, 1940. Article 1 obligates each State to extradite to the other, in accordance with the provisions of the Treaty, any persons who are charged with, or have been found guilty of, an extraditable offense, or persons who are wanted for the carrying out of a detention order. This obligation extends to extraterritorial offenses so long as the law of the Requested State would provide for extraterritorial jurisdiction under similar circumstances, or either the fugitive or the victim is a national of the Requesting State. Explicit reference to jurisdiction based on the nationality of the victim is not typically included in United States extradition treaties, but has been determined to be acceptable in this case and will be discussed in the technical analysis of the treaty submitted to the Senate Foreign Relations Committee. Article 2 provides that an offense is extraditable if it is punishable by both parties by deprivation of liberty for more than one year. Extradition shall be granted only if the duration of the penalty or detention order, or their aggregate, still to be served, amounts to at least six months. The Article also provides that attempts and conspiracies to commit these offenses, and participation in the commission of the offenses, are also extraditable when the underlying criminal act is also a violation of Swiss federal law. Inclusion of a dual- criminality clause rather than a list of offenses covered by the Treaty obviates the need to renegotiate or supplement the Treaty as offenses become punishable under the laws of both parties. The Article further provides that in determining whether an offense is covered under the Treaty, it shall be considered an extraditable offense whether or not the laws in the Contracting Parties place the offenses within the same category of offenses or describe the offense by the same terminology. Article 3 incorporates several exceptions to the obligation to extradite. Article 3(1) states generally that extradition shall not be granted for political offenses or if the request appears to be politically motivated. Article 3(2) states that an offense for which both Parties are obliged pursuant to a multilateral international agreement either to extradite or submit the case for prosecution shall not be considered a political offense and shall be dealt with in accordance with the terms of the relevant multilateral international agreement. For the United States and Switzerland, the offenses currently include aircraft hijacking, pursuant to The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague December 16, 1970, and entered into force October 14, 1971 (22 U.S.T. 1641; T.I.A.S. No. 7192); aircraft sabotage, pursuant to the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at Montreal September 23, 1971, and entered into force January 26, 1973, (24 U.S.T. 564; T.I.A.S. 7570) and the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Montreal Convention, done at Montreal February 24, 1988, and entered into force August 6, 1989, and for the United States November 18, 1994; crimes against internationally protected persons, including diplomats, under the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, done at New York December 14, 1973, and entered into force February 20, 1977 (28 U.S.T. 1975; T.I.A.S. No. 8532); 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, 1985 (T.I.A.S. No. 11081). This limitation will also extend to crimes similarly defined in other multilateral treaties to which both the United States and Switzerland become Parties in the future. Article 3(3) provides that the executive authority of the Requested State may refuse extradition for acts which (a) violated provisions of law relating exclusively to currency policy, trade policy or economic policy, (b) are intended exclusively to reduce taxes or duties, or (c) constitute an offense only under military law. The provisions in subsections (a) and (b) were included in the Treaty because Swiss law for the most part prohibits extradition for purely fiscal or tax offenses. This provision would not be used to shield from extradition underlying criminal conduct, such as fraud, embezzlement, or falsification of public documents, if that conduct is otherwise extraditable. Article 4 bars extradition when the person sought has been convicted or acquitted in the Requested State for the same offense, but does not bar extradition if the competent authorities in the Requested State have declined to prosecute or have decided to discontinue criminal proceedings. Extradition may be denied if the offense for which extradition is sought is subject to the jurisdiction of the Requested State and that State will prosecute the offense. Article 5 mandates the denial of extradition if prosecution is barred by the lapse of time under the law of the Requesting State. Under Article 6, when an offense for which extradition is requested is punishable by death under the laws of the Requesting State and is not so punishable under the laws of the Requested State, the Requested State may refuse extradition unless the Requesting State provides such assurances as the Requested State considers sufficient that the death penalty will not be carried out. Article 7 provides a discretionary basis for the Requested State to deny extradition of a person who has been convicted in absentia unless the Requesting State gives such assurances as the Requested State considers sufficient to safeguard the rights of defense of the person sought. Article 8 provides that the Requested State shall not decline to extradite its nationals unless it has jurisdiction to prosecute them for the acts for which extradition is sought. If extradition is refused because the fugitive is a national of the Requested State, that State shall submit the case for prosecution at the request of the Requesting State. Articles 9-12 address the procedures by which extradition is to be accomplished. Article 9 describes the documents that are required to support a request for extradition. Article 10 provides for the submission of additional information whenever the Requested State considers the information provided with the request to be insufficient. Article 11 requires that all requests to the United States be submitted in English and all requests to Switzerland be submitted in an official language specified by the Swiss authorities in each case. Article 12 establishes the procedures under which documents submitted pursuant to Article 9 shall be received and admitted into evidence in the Requested Party. Article 13 provides for the provisional arrest and detention of a fugitive for no more than forty days (extendable to sixty days) pending receipt by the executive authority of the Requested State of a fully documented extradition request in conformity with Article 9. The discharge of a fugitive from custody pursuant to this Article explicitly does not prejudice subsequent rearrest and extradition upon later delivery of the extradition request and supporting documents. Article 14 specifies the procedures to govern the surrender and return of persons sought. The Requested State is required promptly to notify the Requesting State of its decision on extradition and, if denied in whole or in part, to provide an explanation. If granted, the fugitive must be removed from the territory of the Requested State within the time prescribed by the law of the Requested State. Article 15 provides that if a person is being prosecuted or is serving a sentence in the Requested State for a different offense, that State may (a) defer surrender until the proceedings are concluded or the punishment fully executed, or (b) temporarily surrender the person to the Requesting State solely for the purpose of prosecution. Article 16 is 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 authorities of the Requested State or unless the person extradited fails to leave the Requesting State within 45 days of being free to do so or, having left the Requesting State, returns to it. Provision is made for preventing any lapse of time resulting from the application of the rule of specialty, for modifying charges that were the basis for extradition, and for obtaining consent to prosecution by the individual concerned. Article 17 sets forth a non-exhaustive list of factors to be considered by the Requested State in determining to which State to surrender a person sought by more than one State. Article 18 permits extradition without further proceedings if the fugitive gives his consent. It further provides that extradition from Switzerland pursuant to this Article shall be subject to the rule of speciality. Article 19 provides for the surrender to the Requesting State of property related to the offense for which extradition is requested, even if the person sought cannot be extradited. The Requested State may, however, require the return of the property as soon as practicable. Article 20 governs the transit through the territory of one of the Contracting States of a person being surrendered to the other Contracting State by a third State. Article 21 provides that the Requested State shall represent the Requesting State in any proceedings in the Requested State arising from a request for extradition and bear all costs other than those arising from the translation of documents and transportation of the person sought. Article 22, like the parallel provision in almost all recent United States extradition treaties, states that the Treaty is retroactive, in that it shall apply to offenses committed before as well as after the date the Treaty enters into force. Article 23 provides that this Treaty's procedures should be used if they would facilitate the extradition provided for under any other convention or under the law of the Requested State. It also provides that this Treaty does not impede extradition available under other international agreement or arrangement between the Parties. Article 24 requires consultation between the Parties to facilitate implementation generally or with respect to a specific case. Article 25 provides that the Treaty will enter into force 180 days after the exchange of instruments of ratification. Upon entry into force, this Treaty will supersede the Extradition Treaty signed on May 14, 1900, and the supplementary extradition treaties signed on January 10, 1935, and January 31, 1940, between the United States of America and the Swiss Confederation. The article also provides for denunciation of the Treaty by either Party any time after five years from the date of its entry into force and upon six months written notice to the other Party. A Technical Analysis explaining in detail the provisions of the Treaty has been prepared by 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. Respectfully submitted, Warren Christopher.