Extradition Treaty With AustriaSenate Consideration of Treaty Document 105-50
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[Senate Treaty Document 105-50] [From the U.S. Government Publishing Office] 105th Congress Treaty Doc. SENATE 2d Session 105-50 _______________________________________________________________________ EXTRADITION TREATY WITH AUSTRIA __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF AUSTRIA, SIGNED AT WASHINGTON ON JANUARY 8, 1998 June 11, 1998.--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 11, 1998. 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 Austria, signed at Washington on January 8, 1998. 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. 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. This Treaty will supersede and significantly improve upon the Treaty between the Government of the United States and the Government of Austria for the extradition of fugitives from justice, signed at Vienna on January 31, 1930, and the Supplementary Extradition Convention signed at Vienna on May 19, 1934. 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, May 11, 1998. 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 Austria (``the Treaty''), signed in Washington on January 8, 1998. I recommend that the Treaty be transmitted to the Senate for its advice and consent to ratification. The Treaty follows closely the form and content of extradition treaties recently concluded by the United States in most respects. The Treaty 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 Austria. Upon entry into force, it will replace the Treaty between the Government of the United States and the Government of Austria for the extradition of fugitives from justice, signed at Vienna on January 31, 1930, and the Supplementary Extradition Convention signed at Vienna on May 19, 1934. Those treaties have become outmoded, and the new Treaty will provide significant improvements. The Treaty does not require implementing legislation. Article 1 obligates each Party to extradite to the other, pursuant to the provisions of the Treaty, any person whom the Authorities in the Requesting State have charged with or found guilty of an extraditable offense. Article 2(1) defines an extraditable offense as one punishable under the laws in both Parties by deprivation of liberty for a maximum 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 Parties. Article 2(2) provides that if extradition is sought for the enforcement of a prison sentence or a preventive measure restricting liberty ordered by a criminal court for an extraditable offense, it shall be granted only if at least three months of the sentence or preventive measure remain to be served. Article 2(3) provides that, if extradition has been granted pursuant to paragraph 1 or 2, it shall also be granted for any other offense requested, provided that all other requirements for extradition are met. Article 2(4) provides flexibility to enable extradition in three specific situations. An offense is to be considered an extraditable offense: (A) whether or not the laws in the Parties place the offense within the same category of offenses or describe the offense by the same terminology; (B) in criminal cases relating to taxes, customs duties, currency control, and import and export of commodities, whether or not the laws of the Parties provide for the same kinds of taxes or customs duties, or controls on currency or on the import or export of the same kinds of commodities; or (C) 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. Article 2(5) specifies that an extraditable offense also includes an attempt to commit or a conspiracy to commit, or participation in the commission of, an offense. With regard to offenses committed outside the territory of the Requesting State, Article 2(6) provides that extradition may be granted for an extraditable offense regardless of where it was committed. Many United States criminal statutes have extraterritorial application, and the United States frequently makes requests for fugitives whose criminal activity occurred in foreign countries with the intent, actual or implied, of affecting the United States. Austrian criminal law also has broad jurisdictional scope, containing provisions to enable prosecution of Austrian nationals for offenses committed in other countries under certain circumstances. Article 3(1) provides that neither Party is required to extradite its nationals, but the Executive Authority of the Requested State has the discretionary power to do so, so long as the law of the Requested State does not preclude such extradition. Under Article 3(2), if extradition is refused solely on the basis of the nationality of the person sought, the Requested State must, at the request of the Requesting State, submit the case for domestic prosecution. As is customary in extradition treaties, Article 4 incorporates a political and military offenses exception to the obligation to extradite. Article 4(1) states generally that extradition shall not be granted for a political offense. Article 4(2) specifies several categories of offenses that shall not be considered to be political offenses: (A) murder; (B) any other willful crime against the person of a Head of State of one of the Parties, or of a member of the Head of State's family; and (C) an offense for which both 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. Article 4(3) provides that extradition shall not be granted if the executive authority of the RequestedState determines that the request was politically motivated. Article 4(4) permits the Requested State to deny extradition for military offenses that are not offenses under ordinary criminal law (for example, desertion). Article 5 provides that extradition may be refused if the person sought is proceeded against in the Requested State for the same offense. Article 5(2), however, declares that extradition may be granted if the competent authorities in the Requested State have declined to prosecute for the offenses for which extradition is requested or have decided to discontinue criminal proceedings against the person sought for those acts. Article 6(1) precludes extradition of a person who has been convicted or discharged with final and binding effect by the competent authorities in the Requested State for the offense for which extradition is requested. Article 6(2) clarifies that an acquittal or a discharge for lack of jurisdiction is not an obstacle to extradition, however. Article 7 provides that extradition shall not be granted when prosecution or execution of a sentence has become barred by the statute of limitations of the Requesting State. Article 8(1) permits the Requested State to refuse extradition when an offense is punishable by death under the laws in the Requesting State but not under the laws of the Requested State, unless the Requesting State provides the assurance that the death penalty will not be imposed or, if imposed, will not be carried out. Article 8(2) declares that the death penalty, if imposed by the courts of the Requesting State, shall not be carried out in cases where the Requesting State has provided an assurance in accordance with Article 8(1). Article 9 states that extradition may be refused for a person who has been found guilty in absentia, unless the Requesting State supplies assurances that the person has had or will be given an adequate opportunity to present a defense, or that there are adequate remedies or additional proceedings available to the person after surrender. Article 10 establishes the procedures and describes the documents that are required to support an extradition request. Article 10(1) requires that all requests be submitted through the diplomatic channel. Article 10(3)(c) provides that a request for the extradition of a person sought for prosecution be supported by evidence providing a reasonable basis to believe that the person committed the offense for which extradition is requested and is the person named in the arrest. Article 11 enables a Requested State to seek from the Requesting State supplementary information necessary to meet the requirements for extradition and to permit courts to grant a reasonable continuance in order to allow the request to be fulfilled. Article 12 requires that, unless otherwise agreed, all documents submitted by the Requesting State be translated into the language of the Requested State. Article 13 sets forth procedures for the provisional arrest of a person sought pending presentation of the formal request for extradition. Article 13(4) provides that if the Requested State's executive authority has not received the request for extradition and required supporting documentation within sixty (60) days after the provisional arrest, the person may be discharged from custody. Article 13(5) provides explicitly that discharge from custody pursuant to Article 13(4) does not prejudice subsequent rearrest and extradition of that person upon later delivery of the extradition request and supporting documents. Article 14 specifies the procedures governing surrender and return of persons sought. Article 14(1) requires the Requested State to provide prompt notice to the Requesting State regarding its decision on the request for extradition, and, if the request is denied in whole or in part, to provide an explanation of the reasons. If extradition is granted, the authorities of the Contracting Parties shall decide on the time and place for the surrender of the person sought. Article 14(3) provides that the person sought must be removed from the territory of the Requested State within the time prescribed by its law or, if the law does not provide a specific time for surrender, as is the case in Austria, within a reasonable period of time to be determined by the Requested State. In such cases the Requested State may subsequently refuse extradition for the same offense. Article 14(4) provides an additional safeguard by allowing a Contracting Party to postpone surrender if compelled by circumstances beyond its control. Article 15 concerns postponed and deferred surrender. Article 15(1) provides that the Requested State may postpone the surrender of a person whose extradition has been granted if the person is being proceeded against or is serving a sentence in the Requested State. Alternatively, subparagraph (2) enables the Requested State temporarily to surrender such a person to the Requesting State solely for the purpose of prosecution, subject to return to the Requested State thereafter, in accordance with conditions determined by the Contracting Parties. Article 16 complements Article 15 by expressly permitting the Requested State to defer the initiation of extradition proceedings until after a prosecution in that State has been concluded. Article 17(1) 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 17(2) provides that the Requested State, if it gives precedence to another State, to report to the Requesting State on the extent to which it waives the rule of specialty with respect to possible further extradition. Article 18(1) provides for the seizure and surrender to the Requesting State of property connected with the offense for which extradition is granted, to the extent permitted under the law of the Requested State. Such property may be surrendered even when extradition cannot be effected due to the death, disappearance, or escape of the person sought. In accordance with Article 18(2), 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 18(3) imposes an obligation to respect the rights of third parties in affected property. Article 18(4) makes inapplicable to the surrender of such items any restrictive regulations concerning the import and export of articles and foreign currency, thereby removing a potential obstacle under Austria's currency control regulations. Article 19 sets forth the rule of speciality. Article 19(1) provides, subject to specific exceptions, that a person extradited under the Treaty may not be detained, tried, punished, or subjected to any other restriction on his personal liberty in the Requesting State in relation to an offense committed prior to extradition 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, under Article 19(2), the Requesting State may not extradite such person to a third state for an offense committed prior to the original surrender unless the surrendering State consents. However, Article 19(3) makes clear that 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 thirty days of being free to do so. Article 19(4) stipulates that the rule of specialty shall not operate to prevent the Requesting State from taking measures necessary under its law to effect deportation of the extradited person from its territory or to file charges against the person solely to preclude expiration of the statute of limitations. Article 20 permits surrender to the Requesting State without further proceedings if the person sought consents. The Rule of Specialty set out in Article 19 will not apply to a waiver. Article 21 governs the transit through the territory of one Party of a person being surrendered to the other State by a third State. Article 22 contains provisions on representation and expenses that are similar to those found in other modern extradition treaties. Specifically, the Requested State is required to represent the interests 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 22(3) clarifies that neither State shall make any pecuniary claim against the other State arising out of extradition procedures under the Treaty. Article 23 states that the United States Department of Justice and the Ministry of Justice of Austria may consult with each other directly in connection with the processing of individual cases and in furtherance of maintaining and improving Treaty implementation procedures. Article 24, 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 25. That Article provides that the Parties shall exchange instruments of ratification at Washington and that the treaty shall enter into force on the first day of the third month after the exchange of instruments of ratification. Upon entry into force of this Treaty, the Treaty between the Government of the United States and the Government of Austria for the extradition of fugitives from justice, signed at Vienna on January 31, 1930, and the Supplementary Extradition Convention signed at Vienna on May 19, 1934, shall cease to have effect, with certain noted exceptions. Under Article 26, either Party may terminate the Treaty at any time upon written notice to the other Party, with termination to become 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 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 any early date. Respectfully submitted. Strobe Talbot.