Extradition Agreement with the European UnionSenate Consideration of Treaty Document 109-14
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[Senate Treaty Document 109-14]
[From the U.S. Government Printing Office]
109th Congress Treaty Doc.
2d Session SENATE 109-14
_______________________________________________________________________
EXTRADITION AGREEMENT WITH THE
EUROPEAN UNION
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
AGREEMENT ON EXTRADITION BETWEEN THE UNITED STATES OF AMERICA AND THE
EUROPEAN UNION (EU), SIGNED ON JUNE 25, 2003 AT WASHINGTON, TOGETHER
WITH TWENTY-TWO BILATERAL INSTRUMENTS WHICH SUBSEQUENTLY WERE SIGNED
BETWEEN THE UNITED STATES AND EACH EUROPEAN UNION MEMBER STATE IN ORDER
TO IMPLEMENT THE AGREEMENT WITH THE EU. THE AGREEMENT INCLUDES AN
EXPLANATORY NOTE WHICH IS AN INTEGRAL PART OF THE AGREEMENT
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
September 28, 2006.--Agreement 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
-----
U.S. GOVERNMENT PRINTING OFFICE
49-118(STAR PRINT) WASHINGTON : 2006
LETTER OF TRANSMITTAL
----------
The White House, September 28, 2006.
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 Agreement on
Extradition between the United States of America and the
European Union (EU), signed on June 25, 2003, at Washington,
together with 22 bilateral instruments that subsequently were
signed between the United States and European Union Member
States in order to implement the Agreement with the EU, and an
explanatory note that is an integral part of the Agreement. I
also transmit, for the information of the Senate, the report of
the Department of State with respect to the Agreement and
bilateral instruments. The bilateral instruments with three EU
Member States, Estonia, Latvia, and Malta, take the form of
comprehensive new extradition treaties, and therefore will be
submitted individually.
A parallel agreement with the European Union on mutual
legal assistance, together with bilateral instruments will be
transmitted to the Senate separately. These two agreements are
the first law enforcement agreements concluded between the
United States and the European Union. Together they serve to
modernize and expand in important respects the law enforcement
relationships between the United States and the 25 EU Member
States, as well as formalize and strengthen the institutional
framework for law enforcement relations between the United
States and the European Union itself.
The U.S.-EU Extradition Agreement contains several
provisions that should improve the scope and operation of
bilateral extradition treaties in force between the United
States and each EU Member State. For example, it requires
replacing outdated lists of extraditable offenses included in
10 older bilateral treaties with the modern ``dual
criminality'' approach, thereby enabling coverage of such newer
offenses as money laundering. Another important provision
ensures that a U.S. extradition request is not disfavored by an
EU Member State that receives a competing request for the
person from another Member State pursuant to the newly created
European Arrest Warrant. Finally, the Extradition Agreement
simplifies procedural requirements for preparing and
transmitting extradition documents, easing and speeding the
current process.
I recommend that the Senate give early and favorable
consideration to the Agreement and bilateral instruments.
George W. Bush.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, August 2, 2006.
The President,
The White House.
The President: I have the honor to submit to you, with a
view to its transmittal to the Senate for advice and consent to
ratification, the Agreement on Extradition between the United
States and the European Union (EU) (``U.S.-EU Extradition
Agreement''), signed on June 25, 2003. Also being submitted
together with the U.S.-EU Extradition Agreement are 22
bilateral instruments that were signed by the United States and
EU Member States during 2004-2006. The bilateral instruments
with three EU Member States, Estonia, Latvia, and Malta, take
the form of comprehensive new extradition treaties, and
therefore are being submitted individually. I recommend that
the U.S.-EU Extradition Agreement, including an explanatory
note which is an integral part of the Agreement, and the
related bilateral instruments be transmitted to the Senate for
its advice and consent to ratification. The Department of
Justice joins me in this recommendation.
Respectfully submitted.
Condoleezza Rice.
Attachments:
1. Overview and analysis of the provisions of the
Agreement.
2. Draft message to the Senate.
U.S.-EU Extradition Agreement
OVERVIEW
The U.S.-EU Extradition Agreement selectively amends and
supplements existing United States bilateral extradition
treaties with all Member States of the EU. A counterpart
Agreement on Mutual Legal Assistance between the United States
and the European Union is being submitted separately.
Both U.S.-EU Agreements have their origin in a period of
intensive consultation between the United States and officials
of the European Union and its then-Belgian and Spanish
Presidencies, in the aftermath of the September 11, 2001,
terrorist attacks, on ways of improving trans-Atlantic
cooperation against terrorism. These discussions led to the
conclusion that modernization of existing bilateral extradition
treaties between the United States and EU Member States would
be a valuable step, because a number of such treaties were
concluded in the early 20th century and do not reflect more
recent improvements in extradition practice. By concluding
agreements with the European Union, the United States could
achieve uniform improvements and expansions in coverage across
much of Europe. In addition, the U.S.-EU Agreements would
enable the strengthening of an emerging institutional
relationship on law enforcement matters between the United
States and the European Union, during a period when the EU is
actively harmonizing national criminal law procedures and
methods of international cooperation.
Negotiation of the U.S.-EU Agreements were conducted during
2002 and 2003. The European Union's delegation was led by
officials from Denmark and Greece, which held the EU's rotating
Presidency at that time, and also included officials from the
Council and Commission. After the U.S.-EU Agreements were
signed on June 25, 2003, the United States pursued negotiation
with each Member State of implementing bilateral extradition
instruments. Initial efforts focused on the fifteen states
which were members of the European Union at the time the U.S.-
EU Agreements were signed, and then expanded to the additional
ten states that joined the EU in 2004. The last of the
bilateral instruments were signed on June 9, 2006.
The U.S.-EU Extradition Agreement and bilateral instruments
are regarded as self-executing treaties under U.S. law, and
thus will not require implementing legislation for the United
States. With respect to implementation within the European
Union, there is greater complexity. The EU, as a Contracting
Party, is responsible for implementation of the obligations
contained in the U.S.-EU Extradition Agreement, even though
practical application of those obligations would occur at the
Member State level. The EU Council would monitor
implementation, and empower the Presidency as necessary to
ensure that Member States comply in all respects. EU Member
States, while formally not Contracting Parties to the U.S.-EU
Extradition Agreement, are bound to its provisions under
internal EU law. The Member States also would have
international obligations to the United States under the
bilateral instruments. Most Member States, in order to comply
with the requirements of their domestic constitutional order,
are, like the United States, pursuing domestic processes in
order to ratify both the U.S.-EU Extradition Agreement and the
bilateral instrument. A number of Member States also secured
domestic parliamentary endorsement of the U.S.-EU Extradition
Agreement prior to its signature.
The following is an article-by-article description of the
provisions of the U.S.-EU Extradition Agreement.
The Preamble underscores that cooperation between the
United States and European Union Member States serves to
protect democratic society and our common values, including the
rights of individuals and the rule of law.
Article 1 (``Object and Purpose'') states that the United
States and the EU undertake to provide enhancements to
cooperation in the context of applicable extradition relations
between the United States and individual EU Member States, in
the manner provided in the U.S.-EU Extradition Agreement. Since
extradition between the United States and EU Member States is
carried out pursuant to bilateral extradition treaties, this
phrasing underscores the obligation to supplement and, where
necessary, modify these existing bilateral treaties to
effectuate the terms of the U.S.-EU Extradition Agreement.
Article 2 (``Definitions'') defines three terms used
frequently in the U.S.-EU Extradition Agreement: ``Contracting
Parties,'' ``Member States,'' and ``Ministry of Justice.''
Article 2(1) provides that the Contracting Parties to the
U.S.-EU Extradition Agreement are the United States and the
European Union. Under Articles 24 and 38 of the Treaty of
European Union, the European Union may enter into international
agreements in the area of criminal judicial cooperation. The
Member State then holding the rotating Presidency (Denmark,
followed by Greece) led negotiations for the European Union. At
the conclusion of negotiations, Greece was authorized
unanimously by the European Council to sign the U.S.-EU
Extradition Agreement on behalf of the European Union.
Article 3 (``Scope of application'') (1) provides that the
Contracting Parties shall ensure that the provisions of the
U.S.-EU Extradition Agreement are applied in relation to
existing bilateral extradition treaties between the United
States and EU Member States. Thus the EU is responsible as the
Party to the Agreement for ensuring that Member States make the
necessary changes in their bilateral extradition relationships
with the United States.
The remainder of Article 3(1) specifies the manner in which
existing bilateral extradition treaties between the United
States and EU Member States are affected by Articles 4-14 of
the U.S.-EU Extradition Agreement. Some of these articles serve
to supplement or modify the existing provisions in all
bilateral extradition treaties between the United States and EU
Member States, while others only affect certain bilateral
treaties. There were two main reasons for this approach. One
was to update a significant number of outmoded extradition
treaties in force between the United States and EU Member
States that were 35 to 100 years old, but not to affect more
modern treaties that already had similar or identical
provisions to those contained in the U.S.-EU Extradition
Agreement. The other reason was that certain provisions
contained in the U.S.-EU Extradition Agreement facilitated
cooperation to a greater extent than some existing bilateral
treaties. Article 3 therefore ensures that the U.S.-EU
Extradition Agreement's provisions affect only those bilateral
treaties that would be enhanced thereby.
Accordingly, paragraph 1(a) provides that Article 4
(applying a ``dual criminality'' approach to extraditable
offenses) replaces the extraditable offense provisions of older
treaties in which extradition is available only with respect to
a list of specified offenses. Paragraph 1(b) provides that
Article 5 (streamlining the formal process of authenticating
and transmitting extradition requests) replaces the existing
corresponding provisions of all existing treaties. Paragraph
1(c) provides that Article 6 (authorizing direct transmission
of provisional arrest requests between justice ministries)
applies only where the existing treaty does not already have
such a provision. Paragraph 1(d) provides that Article 7
(authorizing delivery of the formal extradition request to the
embassy of the requested State in the requesting State in order
to satisfy the time restrictions for detaining a person
provisionally arrested) supplements existing bilateral treaty
provisions. Paragraph 1(e) provides that Article 8 (setting
forth the procedure for the request and submission of
supplemental information) applies to the extent the existing
treaty does not already have such a procedure. Paragraph 1(f)
provides that Article 9 (authorizing temporary surrender of
persons) applies only where the existing treaty does not
already have such a provision. Paragraph 1(g) provides that
Article 10 (setting forth the procedure for deciding among
competing extradition requests, including requests for
surrender among European Union Member States under the European
Arrest Warrant) both replaces the competing request provision
of all existing treaties, and supplements any existing treaty
that does not already have such a provision. Paragraph 1(h)
provides that Article 11 (authorizing simplified extradition or
waiver of extradition) applies only where the existing treaty
does not already have such a provision. Paragraph 1(i) provides
that Article 12 (setting forth the procedure for transit)
applies only to the extent that the existing treaty does not
already have such a procedure. Paragraph 1(j) provides that
Article 13 (governing capital punishment) may be applied in
place of the corresponding provision of the existing treaty.
Finally, paragraph 1(k) provides that Article 14 (setting forth
the procedure governing the treatment of sensitive information
in a request) applies where the existing treaty does not
already have such a provision.
The extent to which current individual extradition treaties
with EU Member States are modified or supplemented by
application of these substantive provisions is described later
in this analysis, on a country-by-country basis.
Article 3(2) elaborates on the EU's obligation to ensure
the application of the provisions of the U.S.-EU Extradition
Agreement by its Member States. Specifically, the EU shall
ensure that each Member State acknowledges the consequential
changes to its existing bilateral extradition treaty by
entering into a written ``instrument'' with the United States,
that is, a free-standing international agreement binding under
international law. The EU also must ensure that countries
acceding to the European Union after the entry into force of
the U.S.-EU Extradition Agreement and having extradition
treaties with the United States conclude bilateral instruments
with the United States after accession or preferably prior
thereto.
Paragraph 3 states that the U.S.-EU Extradition Agreement
shall apply in extradition relations between the United States
and a new Member State from the date of notification that
internal procedures for the bilateral instrument have been
completed.
There are both legal and practical reasons for the
requirement of a bilateral instrument between the United States
and each EU Member State. As a matter of international law, the
conclusion of a bilateral instrument conveys to the United
States the sovereign consent of the Member State to the changes
required in treaties concluded and applied at the bilateral
level, rather than relying entirely on the effect of EU
internal law to ensure application of changes in bilateral
treaties to which the European Union itself is not party.
In addition, as a practical matter, since extradition
treaties are litigated and interpreted extensively in national
courts, it was seen as important to delineate in instruments
concluded at the bilateral level the changes made by the U.S.-
EU Extradition Agreement in these bilateral treaties. The
consequential changes are set out either in a revised
integrated text of the particular treaty (included as an Annex
to the instrument) or in provisions placed in the instrument
itself specifically delineating the new operative language.
Conclusion of bilateral instruments thus serves to ease
application of the revised treaties for practititioners and the
judiciary.
Article 4 (``Extraditable offenses'') updates the
provisions of ten older extradition treaties currently in force
that use the outmoded approach of permitting extradition only
with respect to a list of offenses set forth in the treaty. As
discussed above concerning Article 3(1)(a), Article 4 replaces
the extraditable offense provisions only in such older
treaties. The replacement provision corresponds to that of many
other modern U.S. extradition treaties.
Paragraph 1 defines an offense as extraditable if the
conduct on which the offense is based is punishable under the
laws in both States for a period exceeding one year or more
severe penalty, thus obviating the need to renegotiate the
treaty as additional offenses become punishable under the laws
in both States; it provides for attempt, conspiracy and
participation offenses to be considered extraditable; and it
provides a minimum sentence remaining to be served if
extradition is sought for the enforcement of a sentence already
imposed. The Parties intended to include the offenses of
aiding, abetting, counseling or procuring the commission of an
offense, as well as being an accessory to an offense, under the
broad description of participation.
Paragraph 2 provides that if extradition is granted for an
extraditable offense, it shall also be granted for any other
offense specified in the request that is punishable by one
year's imprisonment or less, provided that all other
requirements for extradition are met.
Paragraph 3 provides flexibility so that a dual-criminality
determination is not impeded by the fact that (a) each country
may place the offense in a different category of offenses, or
describe the offense by different terminology; (b) use of
interstate transportation, use of the mails or other facilities
affecting interstate or foreign commerce is a jurisdictional
element of a U.S. federal offense for which tradition is
sought; or (3) in tax, customs duties, currency control or
import or export control cases, both States do not provide for
the same kind of tax, duty or control.
Finally, paragraph 4 provides that extradition shall be
granted with regard to offenses committed outside the territory
of the requesting State if the requested State provides for
punishment of the conduct in such circumstances, and where it
does not, the executive authority of the requested State, in
its discretion, may grant extradition if all other applicable
requirements for extradition are met.
Article 5 (``Transmission and authentication of
documents'') addresses two separate issues. Paragraph 1
provides that transmission of requests for extradition and
their supporting documents shall be through the diplomatic
channel, including in the manner provided for in Article 7
(which addresses a special circumstance in which a state's
Embassy may receive an extradition request).
Paragraph 2 provides that extradition documents bearing the
seal or certificate of the Ministry of Justice (as defined in
Article 2) or Foreign Ministry of the requesting State are
admissible as evidence in extradition proceedings. Under the
terms of Article 3(1)(b), this provision replaces the
certification and authentication provisions of existing
bilateral treaties. With respect to extradition documents
intended for use in extradition proceedings in the United
States, this procedure simplifies the often burdensome
authentication procedure contained in older treaties, in a
manner consistent with U.S. law, 18 U.S.C. 3190, and at the
same time provides sufficient indicia of authenticity.
Article 6 (``Transmission of requests for provisional
arrest'') is intended, pursuant to Article 3(1)(c), to
supplement the terms of some old extradition treaties in which
there is currently no provision for provisional arrest requests
to be sent directly between the U.S. Department of Justice and
the foreign Ministry of Justice. Article 6 also permits the use
of Interpol as an alternative channel for submission of
provisional arrest requests. These channels typically are more
rapid than the diplomatic channel and, therefore, are
particularly useful for making provisional arrest requests when
time is of the essence.
Article 7 (``Transmission of documents following
provisional arrest'') supplements the terms of existing
bilateral extradition treaties between the United States and EU
Member State (see Article 3(1)(d)). It provides that the
requesting State may satisfy its obligation to transmit its
extradition request and supporting documents within the time
limit specified following the provisional arrest of the
fugitive, by submitting them to the embassy of the requested
State in the requesting State. This approach, already provided
for in several recent U.S. extradition treaties, e.g. the 2001
treaty with Lithuania, codifies existing jurisprudence (see,
e.g., United States v. Wiebe, 733 F.2d 549 (8th Cir. 1984), and
Bozilov v. Seiffert, 983 F.2d 140 (9th Cir., 1993)).
For those bilateral treaties lacking such a procedure,
Article 8 (``Supplemental information'') authorizes a State
making an extradition request to furnish supplemental
information within a time period specified by the requested
State, if the request for extradition otherwise would be
insufficient to fulfill the treaty's requirements. Article 8
also specifies that such supplementary information may be
requested and furnished directly between the ministries of
justice concerned and need not be transmitted through the
diplomatic channel.
Similarly, where the current bilateral treaty does not
already do so (see Article 3(1)(f)), Article 9 (``Temporary
Surrender'') provides a procedure for temporarily extraditing a
person being proceeded against or serving a sentence in the
requested State. The requesting State shall keep the person so
surrendered in custody and return him to the requested State
after the conclusion of the proceedings, in accordance with
conditions determined by mutual agreement of the States.
Article 10 (``Request for extradition or surrender made by
several States'') replaces existing provisions of bilateral
extradition treaties concerning competing requests for
extradition and supplements existing treaties that contain no
such provision (see Article 3(1)(g). Paragraph 1 provides that
the executive authority of the requested State shall determine
to which State to surrender a person whose extradition is
sought by more than one State. Paragraph 2 provides that if an
EU Member State receives a request for surrender pursuant to
the European Arrest Warrant (``EAW'') and a request for
extradition from the United States, the designated competent
authority of the EU Member State shall determine to which State
to surrender the person. Paragraph 3 contains a non-exhaustive
list of factors to be considered in making a determination
under either of these scenarios. As a result, this provision
makes clear, as a matter of treaty law, that a EAW request to
one EU Member State from another does not take precedence over
a competing U.S. extradition request. Since the merits of both
requests are judged by the paragraph 3 criteria, the provision
bestows the same status upon a U.S. request for extradition as
upon a request for surrender under the EAW, for purposes of
determining which request shall be given priority.
In connection with Article 10, the Explanatory Note to the
U.S.-EU Extradition Agreement states that the Contracting
Parties agree that this provision is not intended to affect the
obligations of States Parties to the International Criminal
Court (ICC) or the rights of the United States as a non-Party
to the ICC. This reflects that the U.S.-EU Extradition
Agreement does not provide a legal basis for the ICC to take
jurisdiction over U.S. persons, or for an EU Member State to
extradite U.S. persons to the ICC.
Under Article 11 (``Simplified extradition procedures''),
for those bilateral treaties that do not already contain such a
provision (see Article 3(1)(h)), a procedure is established for
surrendering the person sought as expeditiously as possible if
he agrees to be surrendered to the requesting State without
further proceedings.
Similarly, where the current bilateral treaty does not
already do so (see Article 3(1)(i)), Article 12 (``Transit''),
paragraphs 1 through 3, provides a procedure for transit
through the territory of one State of a person being
surrendered to the other State by a third State or from the
other State to a third State. If the current bilateral
extradition treaty contains a transit provision that does not
specify a procedure for cases of unscheduled landings in the
transit State, only paragraph 3 is to be applied. Paragraph 2
also authorizes the detention of the person during the period
of transit.
Article 13 (``Capital punishment'') provides that when an
offense for which extradition is sought is punishable by death
under the laws in the requesting State but not under the laws
in the requested State, the requested State may grant
extradition on condition that the death penalty shall not be
imposed or, if for procedural reasons such condition cannot be
complied with by the requesting State, on condition that if
imposed the death penalty shall not be carried out. This
formulation is analogous to those of other modern U.S.
extradition treaties and corresponds to the practice that has
developed in death penalty cases. In essence, where prosecuting
authorities have discretion to not seek the death penalty, the
requested State may subject extradition to the condition that
the death penalty not be imposed. However, where, under the
procedures applicable in the jurisdiction seeking extradition,
this discretion is not absolute, an assurance of non-imposition
of the death penalty cannot be made. In this case, extradition
may be subjected only to the condition that if the death
penalty is imposed, it shall not be carried out. Under Article
3(1)(j), this provision may be applied to replace existing
provisions on capital punishment or where the existing treaty
contains no such provision.
Under Article 14 (``Sensitive information in a request''),
where a current bilateral treaty does not already do so (see
Article 3(1)(k)), a procedure is established whereby a
requesting State that is considering the submission of
particularly sensitive information in its extradition request
may consult the requested State to determine the extent to
which such information can be protected. The requesting State
can thereupon determine whether or not it should include the
information in the request.
Under Article 15 (``Consultations''), the United States and
the European Union, as the Contracting Parties, shall consult
for purposes of enabling the most effective use of the U.S.-EU
Extradition Agreement, including to facilitate resolution of
disputes regarding its application or interpretation.
Article 16 (``Temporal application'') provides that the
U.S.-EU Extradition Agreement applies to offenses committed
before as well as after it enters into force. Articles 4
(extraditable offenses) and 9 (temporary surrender) apply to
requests pending in a requested State at the time of the U.S.-
EU Extradition Agreement's entry into force; otherwise the
Agreement applies only to requests for extradition made after
its entry into force.
Article 17 (``Non-derogation''), paragraph 1, makes clear
that the U.S.-EU Extradition Agreement's provisions do not
preclude the assertion of a ground for refusal set forth in the
applicable extradition treaty in respect of a matter not
governed by the U.S.-EU Extradition Agreement. Under paragraph
2, consultations are to take place between the requesting and
requested States should a constitutional principle or judicial
decision binding upon the requested State pose an impediment to
the fulfillment of the obligation to extradite, and resolution
of the matter is not provided for in the U.S.-EU Extradition
Agreement or the applicable bilateral extradition treaty. Such
situations occasionally arise in extradition relations as
constitutional jurisprudence evolves in national courts.
Article 18 (``Future bilateral extradition treaties with
Member States'') provides that the United States and EU Member
States may conclude future bilateral extradition agreements
consistent with the U.S.-EU Extradition Agreement. In the
Explanatory Note, it is clarified that should measures set
forth in the U.S.-EU Extradition Agreement create operational
difficulties for the United States or a Member State, and
consultations alone cannot remedy the difficulty, a future
bilateral agreement with that Member State could contain an
operationally feasible alternative mechanism that satisfies the
objectives of the provision in question.
Article 19 (``Designation and notification'') provides that
the EU shall notify the United States of designations pursuant
to Article 2(3) (the authority designated as ``Ministry of
Justice'' for purposes of the functions specified in the U.S.-
EU Extradition Agreement) or 10(2) (the authority competent to
determine priority between a U.S. extradition request and a
European Arrest Warrant request), prior to the exchange of
bilateral written instruments between the United States and
Member States under Article 3(2).
Under Article 20 (``Territorial application''), paragraph
1, the U.S.-EU Extradition Agreement applies to the United
States of America, to EU Member States, to territories for
whose external relations a Member State is responsible, and to
countries for whom the member has other duties pertaining to
their external relations, where agreed upon by exchange of
diplomatic note between the EU and United States, duly
confirmed by the relevant Member State. Several EU Member
States have such responsibilities; hence, this enables the
United States and the EU to agree to include such territories
or countries within the ambit of the U.S.-EU Extradition
Agreement. Under paragraph 2, application of the U.S.-EU
Extradition Agreement to such territories or countries may be
terminated upon a six-month prior written notice through the
diplomatic channel, again where confirmed between the United
States and the Member State concerned.
Article 21 (``Review'') provides that the United States and
the EU will carry out a common review of the U.S.-EU
Extradition Agreement no later than five years after its entry
into force, in particular for purposes of addressing its
practical implementation and the consequences of the further
development of the European Union in relation to the subject
matter of the U.S.-EU Extradition Agreement, including Article
10.
Article 22 (``Entry into force and termination''),
paragraph 1, provides that the U.S.-EU Extradition Agreement
shall enter into force on the first day following the third
month after the date on which the United States and the EU have
indicated that they have completed their internal procedures
for this purpose. The exchange of instruments of ratification
between the United States and the European Union shall also
indicate that the bilateral instruments between the United
States and all EU Member States have been completed. Paragraph
2 provides that either the United States or the EU may
terminate the U.S.-EU Extradition Agreement by giving written
notice to the other, with such termination effective six months
after the date of such notice.
Bilateral Instruments between the United States and EU Member States
implementing the U.S.-EU Extradition Agreement
As noted above, Article 3(2) of the U.S.-EU Extradition
Agreement requires the conclusion of a written instrument
between the United States and each Member State, indicating the
application of the Agreement's provisions in the bilateral
extradition relationship. The following discussion delineates
the content and character of each of these instruments (except
for the three that take the form of full treaties), and any
understandings reached between the United States and individual
Member States in the course of negotiations.
The title chosen for the ``written instrument'' required by
Article 3(2) of the U.S.-EU Extradition Agreement varies among
the Member States. Most Member States preferred to retain the
general term ``Instrument'' as used in the U.S.-EU Agreement,
but others preferred more specific descriptions utilized under
their national law that also are consistent with the binding
character of the instrument under international law. Thus,
instruments with several Member States (e.g. Germany, Czech
Republic) are termed supplementary treaties, while other Member
States (e.g. Austria and Greece) preferred the similar term
``protocol.'' Still others chose the more general ``Agreement''
(e.g. Netherlands, Poland).
Each instrument first expresses the agreement of the
Parties to apply the provisions of the U.S.-EU Extradition
Agreement under the terms laid out in Article 3 of that
Agreement. The new textual provisions to be applied are either
specified verbatim in the instrument or set out in an annex
containing a revised consolidated text. The United States
regarded the annex form as preferable from the perspective of
U.S. courts and practitioners called upon to interpret a
particular extradition treaty with a Member State. A majority
of Member States agreed. This approach will ease application of
a number of treaties, such as the extradition treaty with
Spain, which previously had been amended piecemeal through
three protocols and only now will be available in integrated
form.
Other Member States, however, opted for non-integrated
texts, in which only the newly operative supplemental or
replacement language is set forth and is located in the
instrument itself rather than in a separate annex. These Member
States regarded inclusion of a consolidated text as not
permitted by their domestic law. The consequence of the non-
integrated approach is only that reference to both the
instrument and the pre-existing treaty is necessary in order to
apply the entire set of obligations between the United States
and the Member State.
Each instrument, for reasons of clarity, also recites the
provision on temporal application from the U.S.-EU Extradition
Agreement, stating that the instrument applies to offenses
committed before as well as after it enters into force, but, in
general, does not apply to requests made prior to its entry
into force.
Instruments with several Member States required
specification as to their geographic scope. These states--
Denmark, the Netherlands and the United Kingdom--exercise
foreign relations responsibilities for territories or
independent countries, including applying the European state's
law enforcement treaties on their behalf. However, since the
geographic scope of the European Union for purposes of criminal
justice cooperation does not necessarily extend to all these
territories and countries, the provisions of the U.S.-EU
Extradition Agreement would not apply to them unless
specifically stipulated. Consequently, the relevant bilateral
instruments spell out whether extradition relations with the
United States in respect of these territories and countries
would continue to be governed by the pre-existing treaties in
unmodified form.
Each bilateral instrument also contains a provision on
entry into force and termination. Entry into force of each
instrument occurs on the date of entry into force of the U.S.-
EU Extradition Agreement, after exchange of notifications.
Eighteen Member States will ratify both the U.S.-EU Extradition
Agreement and the bilateral instrument, since they serve to
amend bilateral treaties which previously also were ratified.
Four Member States regard formal ratification of the U.S.-EU
Extradition Agreement as unnecessary under their domestic
constitutional order, however, as authority in this respect has
been deemed to have been granted to the EU, but will ratify the
implementing bilateral instrument. Three Member States viewed
it as unnecessary to ratify even the bilateral instrument.
Finally, in the event of termination of the U.S.-EU
Extradition Agreement--a step that would, of course, take place
between the Parties to this Agreement--the bilateral instrument
also shall terminate. Thereupon application of the pre-existing
bilateral treaties, which are regarded as suspended while the
bilateral instruments are in force, would resume. The United
States and the Member States could, however, agree bilaterally
to continue to apply some or all of the provisions in the
bilateral instrument derived from the U.S.-EU Extradition
Agreement.
Austria
The bilateral extradition instrument with Austria was
signed on July 20, 2005, and is entitled a protocol of the 1998
U.S.-Austria Extradition Treaty. Articles 1-6 of the bilateral
protocol incorporate six provisions of the U.S.-EU Extradition
Agreement into the 1998 treaty, as follows: Article 5(1) of the
U.S.-EU Extradition Agreement (mode of transmission of
requests) replaces Article 10(1); Article 5(2) of the U.S.-EU
Extradition Agreement (certification, authentication or
legalization requirements) replaces Article 10(5); Article 7(1)
of the U.S.-EU Extradition Agreement (transmission of requests
following provisional arrest) is added as Article 10(6);
Article 8(2) of the U.S.-EU Extradition Agreement (channel for
transmission of supplementary information) is added as Article
11(4); Article 10 of the U.S.-EU Extradition Agreement
(requests for extradition or surrender made by several states)
replaces Article 17; and Article 14 of the U.S.-EU Extradition
Agreement (sensitive information in a request) is added as
Article 11 bis.
With respect to final provisions, Articles 7 and 8 of the
bilateral protocol reflect the provisions of Articles 16
(temporal application) and 22 (entry into force and
termination) of the U.S.-EU Extradition Agreement.
Belgium
The bilateral extradition instrument with Belgium was
signed on December 16, 2004. Paragraph 1 of the bilateral
instrument specifies the articles of the U.S.-EU Extradition
Agreement applicable between the United States and Belgium.
Paragraph 2 provides that the Annex to the instrument reflects
the integrated text that shall apply between the United States
and Belgium. Paragraphs 3 and 4 contain rules of temporal
application, based on those set forth in Article 16 of the
U.S.-EU Extradition Agreement. Paragraph 5 contains the
provisions on entry into force and termination, based on those
set forth in Article 22 of the U.S.-EU Extradition Agreement.
The Annex integrates the applicable provisions of the U.S.-
EU Extradition Agreement and the 1987 U.S.-Belgium Extradition
Treaty. Seven substantive provisions of the U.S.-EU Extradition
Agreement are incorporated into the 1987 Treaty, as follows:
Article 5(1) of the U.S.-EU Extradition Agreement (mode of
transmission of requests) replaces Article 7(1) of the 1987
Treaty; Article 5(2) of the U.S.-EU Extradition Agreement
(certification, authentication or legalization requirements)
replaces Article 8; Article 7(1) of the U.S.-EU Extradition
Agreement (transmission of requests following provisional
arrest) is added as Article 7(5); Article 8 of the U.S.-EU
Extradition Agreement (supplementary information) is added as
Article 7 bis; Article 10 of the U.S.-EU Extradition Agreement
(requests for extradition or surrender made by several States)
replaces Article 13; Article 13 of the U.S.-EU Extradition
Agreement (capital punishment) replaces Article 6(1); and
Article 14 (sensitive information in a request) is added as
Article 8 bis.
Cyprus
The bilateral extradition instrument with Cyprus was signed
on January 20, 2006. Paragraph 1 of the bilateral instrument
specifies the articles of the U.S.-EU Extradition Agreement
applicable between the United States and Cyprus. Paragraph 2
provides that the Annex to the instrument reflects the
integrated text that shall apply between the United States and
Cyprus. Paragraphs 3 and 4 contain rules of temporal
application, based on those set forth in Article 16 of the
U.S.-EU Extradition Agreement. Paragraph 5 contains the
provisions on entry into force and termination, based on those
set forth in Article 22 of the U.S.-EU Extradition Agreement.
The Annex to the instrument integrates the applicable
provisions of the U.S.-EU Extradition Agreement and the 1996
U.S.-Cyprus Extradition Treaty. Seven substantive provisions of
the U.S.-EU Extradition Agreement are incorporated into the
1996 Treaty, as follows: Article 5(1) of the U.S.-EU
Extradition Agreement (mode of transmission of requests) is the
same text as the first sentence of Article 8(1) of the 1996
Treaty; Article 5(2) of the U.S.-EU Extradition Agreement
(certification, authentication or legalization requirements)
replaces Article 9; Article 7(1) of the U.S.-EU Extradition
Agreement (transmission of requests following provisional
arrest) is added to the end of Article 8(1); Article 8(2) of
the U.S.-EU Extradition Agreement (channel for submission of
supplementary information) is added as Article 8(5)(b); Article
10 of the U.S.-EU Extradition Agreement (requests for
extradition or surrender made by several States) replaces
Article 14; Article 13 of the U.S.-EU Extradition Agreement
(capital punishment) replaces Article 6; and Article 14
(sensitive information in a request) is added as Article 8(8).
Czech Republic
The bilateral extradition instrument with the Czech
Republic was signed on May 16, 2006, and is entitled a second
supplementary treaty to the 1925 U.S.-Czechoslovak Extradition
Treaty and the 1935 Supplementary Extradition Treaty. Articles
1-5 and 7-14 of the supplementary treaty incorporate twelve
provisions of the U.S.-EU Extradition Agreement as follows:
Article 4 of the U.S.-EU Extradition Agreement (extraditable
offenses) is reflected in new formulations replacing Articles I
and II of the 1925 Treaty; Articles 5(1) (mode of transmission
of requests), 6 (channel of transmission of requests for
provisional arrest) and 7(1) (transmission of requests
following provisional arrest) of the U.S.-EU Extradition
Agreement are combined into a new formulation which replaces
Article XI(2)-(4); Article 5(2) of the U.S.-EU Extradition
Agreement (certification, authentication or legalization
requirements) is added as Article XI(6); Article 8 of the U.S.-
EU Extradition Agreement (supplementary information) is added
as Article XIa; Article 9 of the U.S.-EU Extradition Agreement
(temporary surrender) is incorporated through a new formulation
of Article VI(1), and the addition of Article VIa; Article 10
of the U.S.-EU Extradition Agreement (requests for extradition
or surrender made by several States) replaces Article VII;
Article 11 of the U.S.-EU Extradition Agreement (simplified
extradition procedures) is added as Article XIc; Article 12 of
the U.S.-EU Extradition Agreement (transit) is added as Article
XIIa; Article 13 of the U.S.-EU Extradition Agreement (capital
punishment) is added as Article XIIb; and Article 14 of the
U.S.-EU Extradition Agreement (sensitive information in a
request) is added as Article XIb.
With respect to final provisions, Articles 14, 16 and 17 of
the bilateral supplementary treaty contain provisions on
temporal application, entry into force and termination, based
on those set forth in Articles 16 and 22 of the U.S.-EU
Extradition Agreement.
Although not required by the U.S.-EU Extradition Agreement,
the United States and the Czech Republic also agreed to replace
Article IX of the 1925 Treaty (costs) with a more modern
provision, which is set forth in Article 6 of the bilateral
supplementary treaty. Similarly, in Article 15 of the
supplementary treaty, the United States and the Czech Republic
agreed to a provision on periodic consultations between the
Parties.
Denmark
The bilateral extradition instrument with Denmark was
signed on June 23, 2005, and is entitled an agreement. The
bilateral agreement, in paragraph 1, specifies the articles of
the U.S.-EU Extradition Agreement applicable between the United
States and Denmark. Paragraph 2 provides that the Annex to the
agreement reflects the integrated text that shall apply between
the United States and Denmark. Paragraph 3, in accordance with
Article 20 of the U.S.-EU Extradition Agreement, provides that
the instrument shall not apply to Greenland or the Faroe
Islands unless the United States and the EU, by exchange of
diplomatic notes duly confirmed by Denmark, subsequently agree
otherwise. Paragraph 4 contains rules of temporal application,
based on those set forth in Article 16 of the U.S.-EU
Extradition Agreement. Paragraph 5 contains the provisions on
entry into force and termination, based on those set forth in
Article 22 of the U.S.-EU Extradition Agreement.
The Annex integrates the applicable provisions of the U.S.-
EU Extradition Agreement and the 1972 U.S.-Denmark Extradition
Treaty. Eleven substantive provisions of the U.S.-EU
Extradition Agreement are incorporated into the 1972 Treaty as
follows: Article 4 of the U.S.-EU Extradition Agreement
(extraditable offenses) replaces Articles 2, 3 and 4(2);
Article 5(1) of the U.S.-EU Extradition Agreement (mode of
transmission of requests) replaces Article 11(1); Article 5(2)
of the U.S.-EU Extradition Agreement (certification,
authentication or legalization requirements) replaces Article
11(5); Article 7(1) of the U.S.-EU Extradition Agreement
(transmission of requests following provisional arrest) is
added as Article 11(7); Article 8(2) of the U.S.-EU Extradition
Agreement (channel for submission of supplementary information)
is added as Article 13(3); Article 9 of the U.S.-EU Extradition
Agreement (temporary surrender) is added as Article 13 bis;
Article 10 of the U.S.-EU Extradition Agreement (requests for
extradition or surrender made by several States) replaces
Article 15; Article 11 of the U.S.-EU Extradition Agreement
(simplified extradition procedures) is added as Article 13 ter;
Article 12(3) of the U.S.-EU Extradition Agreement (transit) is
added as Article 18(3); Article 13 of the U.S.-EU Extradition
Agreement (capital punishment) replaces Article 8; and Article
14 of the U.S.-EU Extradition Agreement (sensitive information
in a request) is added as Article 11(8).
Estonia
On February 8, 2006, the United States and Estonia signed a
new bilateral extradition treaty incorporating all of the
requirements set forth in Articles 4-14 of the U.S.-EU
Extradition Agreement. This new treaty, which is being
separately transmitted to the Senate for advice and consent to
ratification, serves as the instrument called for in Article 3
of the U.S.-EU Extradition Agreement.
Finland
The bilateral extradition instrument with Finland was
signed on December 16, 2004, and is entitled a protocol to the
1976 U.S.-Finland Extradition Treaty. Paragraph 1 of the
bilateral protocol specifies the articles of the U.S.-EU
Extradition Agreement applicable between the United States and
Finland. Paragraph 2 provides that the Annex to the protocol
reflects the provisions that shall be applied between the
United States and Finland, together with the unaffected
provisions of the 1976 Treaty. Paragraphs 3 and 4 contain rules
of temporal application, based on those set forth in Article 16
of the U.S.-EU Extradition Agreement. Paragraph 5 contains the
provisions on entry into force and termination, based on those
set forth in Article 22 of the U.S.-EU Extradition Agreement.
The Annex sets forth the texts of provisions derived from
the U.S.-EU Extradition Agreement that are to be applied to the
1976 Treaty. Eleven substantive provisions of the U.S.-EU
Extradition Agreement are incorporated therein, as follows:
Article 4 of the U.S.-EU Extradition Agreement (extraditable
offenses) replaces Articles 2 and 3(3); Article 5(1) of the
U.S.-EU Extradition Agreement (mode of transmission of
requests) replaces Article 13(1); Article 5(2) of the U.S.-EU
Extradition Agreement (certification, authentication or
legalization requirements) replaces Article 13(5); Article 6(2)
of the U.S.-EU Extradition Agreement (channel for transmission
of requests for provisional arrest) is added as Article 14(4);
Article 7(1) of the U.S.-EU Extradition Agreement (transmission
of requests following provisional arrest) is added as Article
13(7); Article 8(2) of the U.S.-EU Extradition Agreement
(channel for submission of supplementary information) is added
as Article 15(3); Article 9 of the U.S.-EU Extradition
Agreement (temporary surrender) is added as Article 16 bis;
Article 10 of the U.S.-EU Extradition Agreement (requests for
extradition or surrender made by several States) replaces
Article 18; Article 11 of the U.S.-EU Extradition Agreement
(simplified extradition) is added as Article 15 bis; Article
12(3) of the U.S.-EU Extradition Agreement (transit procedure
in the event of unscheduled landing of aircraft) is added as
Article 20(3); and Article 14 of the U.S.-EU Extradition
Agreement (sensitive information in a request) is added as
Article 20 bis.
France
The bilateral extradition instrument with France was signed
on September 30, 2004. Paragraph A of Articles I-VII sets forth
the text of the articles of the U.S.-EU Extradition Agreement
applicable between the United States and France. Paragraph B of
Articles I-VII specifies the extent to which these provisions
supplement or replace provisions of the 1996 U.S.-France
Extradition Treaty, and provides other necessary explanations
regarding the manner in which the U.S.-EU Extradition Agreement
is to operate. Article VIII and IX contain rules of temporal
application, entry into force and termination based on those
set forth in Articles 16 and 22 of the U.S.-EU Extradition
Agreement.
Seven provisions of the U.S.-EU Extradition Agreement are
incorporated into the 1996 Treaty as follows: Article 5(1) of
the U.S.-EU Extradition Agreement (mode of transmission of
requests) replaces Article 10(1); Article 5(2) of the U.S.-EU
Extradition Agreement (certification, authentication or
legalization requirements) replaces Article 11; Article 7(1) of
the U.S.-EU Extradition Agreement (transmission of requests
following provisional arrest) supplements the terms of Articles
10 and 13; Article 10 of the U.S.-EU Extradition Agreement
(requests for extradition or surrender made by several states)
replaces Article 17; Article 11 of the U.S.-EU Extradition
Agreement (simplified extradition procedures) supplements the
terms of the 1996 Treaty; Article 13 of the U.S.-EU Extradition
Agreement (capital punishment) replaces Article 7, and Article
14 of the U.S.-EU Extradition Agreement (sensitive information
in a request) supplements the provisions of the 1996 Treaty.
With respect to declarations under Article 19 of the U.S.-
EU Extradition Agreement, France has designated the Chambre
d'instruction de la Cour d'Appel as the competent authority
that will decide under Article 10(2) between a U.S. request for
extradition and a request for surrender pursuant to the
European Arrest Warrant for the same individual.
Germany
The bilateral extradition instrument with Germany was
signed on April 18, 2006, and is entitled a second
supplementary treaty to the 1978 U.S.-Germany Extradition
Treaty and the 1986 Supplementary Extradition Treaty. Articles
1-6 of the second supplementary treaty incorporate six U.S.-EU
Extradition Agreement provisions into the existing bilateral
extradition treaties as follows: Article 5(2) of the U.S.-EU
Extradition Agreement (certification, authentication or
legalization requirements) replaces Article 29; Article 6 of
the U.S.-EU Extradition Agreement (channel for transmission of
requests for provisional arrest) is added as the final sentence
of Article 16(1); Article 7 of the U.S.-EU Extradition
Agreement (transmission of requests following provisional
arrest) is added as Article 16(5), with the existing Article
16(5) being renumbered as 16(6); Article 10 of the U.S.-EU
Extradition Agreement (requests for extradition or surrender
made by several states) replaces Article 17; Article 13 of the
U.S.-EU Extradition Agreement (capital punishment) replaces
Article 12; and Article 14 of the U.S.-EU Extradition Agreement
(sensitive information in a request) is added as Article 15
bis.
With respect to final provisions, Articles 7 and 8 of the
second supplementary treaty reflect the provisions of Articles
16 (temporal application) and 22 (entry into force and
termination) of the U.S.-EU Extradition Agreement.
Greece
The bilateral extradition instrument with Greece was signed
on January 18, 2006, and is entitled a protocol to the 1931
U.S.-Greece Extradition Treaty and its 1937 protocol. Articles
1 through 12 of the second protocol incorporate twelve
provisions of the U.S.-EU Extradition Agreement into the
existing extradition treaties, as follows: Article 4 of the
U.S.-EU Extradition Agreement (extraditable offenses) modifies
Article I and replaces Article II; Article 5 of the U.S.-EU
Extradition Agreement (mode of transmission of requests and
certification, authentication or legalization requirements) is
incorporated into a formulation that replaces Article XI(2);
Article 6 of the U.S.-EU Extradition Agreement (channel for
transmission of request for provisional arrest) supplements the
provisions of Article XI; Article 7(1) of the U.S.-EU
Extradition Agreement (transmission of requests following
provisional arrest) supplements the provisions of Article XI;
Articles 8 (supplemental information), 9 (temporary surrender),
11 (simplified extradition procedures), 12 (transit), 13
(capital punishment) and 14 (sensitive information in a
request) of the U.S.-EU Extradition Agreement generally
supplement the provisions of the existing extradition treaties.
Article 10 of the U.S.-EU Extradition Agreement (requests for
extradition or surrender made by several States) replaces
Article VII; and Article 12 of the second protocol confirms
that other provisions of the existing treaties remain in force,
and that the second protocol shall be interpreted consistent
with the U.S.-EU Extradition Agreement.
With respect to final provisions, Articles 13 and 14 of the
bilateral protocol reflect the provisions of Article 16
(temporal application) and 22 (entry into force and
termination) of the U.S.-EU Extradition Agreement.
Hungary
The bilateral extradition instrument with Hungary was
signed on November 15, 2005, and is entitled a protocol to the
1994 U.S.-Hungary Extradition Treaty. Articles 1 through 5 of
the bilateral protocol incorporate five articles of the U.S.-EU
Extradition Agreement into the 1994 Treaty, as follows: Article
5(1) and 7(1) of the U.S.-EU Extradition Agreement (mode of
transmission of requests) are incorporated into a formulation
that replaces Article 8(1); Article 5(2) of the U.S.-EU
Extradition Agreement (certification, authentication or
legalization requirements) replaces Article 9; Article 8(2) of
the U.S.-EU Extradition Agreement (channel for submission of
supplementary information) is added as Article 12(1A); Article
10 of the U.S.-EU Extradition Agreement (requests for
extradition or surrender made by several States) replaces
Article 15; and Article 14 of the U.S.-EU Extradition Agreement
(sensitive information in a request) is added as Article 9A.
With respect to final provisions, Articles 6 and 7 of the
bilateral protocol reflect the provisions of Article 16
(temporal application) and 22 (entry into force and
termination) of the U.S.-EU Extradition Agreement.
Ireland
The bilateral extradition instrument with Ireland was
signed on July 14, 2005. Paragraph 1 of the bilateral
instrument specifies the articles of the U.S.-EU Extradition
Agreement applicable between the United States and Ireland.
Paragraph 2 provides that the Annex to the instrument reflects
the integrated text that shall apply between the United States
and Ireland. Paragraph 3 and 4 contain rules of temporal
application, based on those set forth in Article 16 of the
U.S.-EU Extradition Agreement. Paragraph 5 contains the
provisions on entry into force and termination, based on those
set forth in Article 22 of the U.S.-EU Extradition Agreement.
The Annex integrates the applicable provisions of the U.S.-
EU Extradition Agreement and the 1983 U.S.-Ireland Extradition
Treaty. Ten substantive provisions of the U.S.-EU Extradition
Agreement are incorporated into the 1983 Treaty, as follows:
Article 5(1) of the U.S.-EU Extradition Agreement (mode of
transmission of requests) replaces Article VIII(1); Article
5(2) of the U.S.-EU Extradition Agreement (certification,
authentication or legalization requirements) is added as
Article VIII(7); Article 7(1) of the U.S.-EU Extradition
Agreement (transmission of requests following provisional
arrest) is added as Article VIII(8); Article 8(2) of the U.S.-
EU Extradition Agreement (channel for submission of
supplementary information) is added as Article IX(3); Article 9
of the U.S.-EU Extradition Agreement (temporary surrender) is
added as Article VII bis; Article 10 of the U.S.-EU Extradition
Agreement (requests for extradition or surrender made by
several States) replaces Article XII; Article 11 of the U.S.-EU
Extradition Agreement (simplified extradition procedures) is
added as Article XII bis; Article 12(3) of the U.S.-EU
Extradition Agreement (transit procedure in event of
unscheduled landing of aircraft) is added as Article XV(2);
Article 13 of the U.S.-EU Extradition Agreement (capital
punishment) replaces Article VI; and Article 14 of the U.S.-EU
Extradition Agreement) sensitive information is a request) is
added as Article VIII bis.
With respect to declarations under Article 19 of the U.S.-
EU Extradition Agreement, Ireland has designated the High
Court, or such other authority as it may designate, as the
competent authority that will decide under Article 10(2)
between a U.S. request for extradition and a request for
surrender pursuant to the European Arrest Warrant for the same
individual.
Italy
The bilateral extradition instrument will Italy was signed
on May 3, 2006. Paragraph 1 of the bilateral instrument
specifies the articles of the U.S.-EU Extradition Agreement
applicable between the United States and Italy. Paragraph 2
provides that the Annex to the instrument reflects the
integrated text that shall apply between the United States and
Italy. Paragraphs 3 and 4 contain rules of temporal
application, based on those set forth in Article 16 of the
U.S.-EU Extradition Agreement. Paragraph 5 contains the
provisions on entry into force and termination, based on those
set forth in Article 22 of the U.S.-EU Extradition Agreement.
The Annex integrates the applicable provisions of the U.S.-
EU Extradition Agreement and the 1983 U.S.-Italy Extradition
Treaty. Seven substantive provisions of the U.S.-EU Extradition
Agreement are incorporated into the 1983 Treaty, as follows:
Article 5(1) of the U.S.-EU Extradition Agreement (mode of
transmission of requests) replaces Article X(1); Article 5(2)
of the U.S.-EU Extradition Agreement (certification,
authentication or legalization requirements) replaces Article
X(7); Article 7(1) of the U.S.-EU Extradition Agreement
(transmission of requests following provisional arrest) is
added as Article X(8); Article 8(2) of the U.S.-EU Extradition
Agreement (channel for submission of supplementary information)
is added as Article XI(3); Article 10 of the U.S.-EU
Extradition Agreement (requests for extradition or surrender
made by several States) replaces Article XV; Article 13 of the
U.S.-EU Extradition Agreement (capital punishment) replaces
Article IX; and Article 14 of the U.S.-EU Extradition Agreement
(sensitive information in a request) is added as Article XI
bis.
Latvia
On December 7, 2005, the United States and Latvia signed a
new bilateral extradition treaty incorporating all of the
requirements set forth in Articles 4-14 of the U.S.-EU
Extradition Agreement. This new treaty, which is being
separately transmitted to the Senate for advice and consent to
ratification, serves as the instrument called for in Article 3
of the U.S.-EU Extradition Agreement.
Lituania
The bilateral extradition instrument with Lithuania was
signed on June 15, 2005, and is entitled a protocol to the 2001
U.S.-Lithuania Extradition Treaty. The bilateral protocol, in
paragraph 1, specifies the articles of the U.S.-EU Extradition
Agreement applicable between the United States and Lithuania.
Paragraph 2 provides that the Annex to the protocol reflects
the integrated text that shall apply between the United States
and Lithuania. Paragraphs 3-5 contain rules of temporal
application, entry into force and termination, based on those
set forth in Articles 16 and 22 of the U.S.-EU Extradition
Agreement.
The Annex integrates the applicable provisions of the U.S.-
EU Extradition Agreement and the 2001 Treaty. Seven substantive
provisions of the U.S.-EU Extradition Agreement are
incorporated into the 2001 Treaty as follow; Article 5(1) of
the U.S.-EU Extradition Agreement (mode of transmission of
requests) replaces Article 8(1); Article 5(2) of the U.S.-EU
Extradition Agreement (certification, authentication or
legalization requirements) replaces Article 9; Article 7(1) of
the U.S.-EU Extradition Agreement (transmission of requests
following provisionals arrest) is already reflected in existing
Article 11(4); Article 8 of the U.S.-EU Extradition Agreement
(channel for submission of supplementary information) is added
as Article 8 bis; Article 10 of the U.S.-EU Extradition
Agreement (requests for extradition or surrender made by
several States) replaces Article 14; Article 13 of the U.S.-EU
Extradition Agreement (capital punishment) replaces Article 7;
and Article 14 of the U.S.-EU Extradition Agreement (sensitive
information in a request) is added as Article 8 ter.
Luxembourg
The bilateral extradition instrument with Luxembourg was
signed on February 1, 2005. Paragraph A of Articles I-VII sets
forth the text of the articles of the U.S.-EU Extradition
Agreement applicable between the United States and Luxembourg.
Paragraph B of Articles I-VII specifies the extent to which
these provisions supplement or replace provisions of the 1996
U.S.-Luxembourg Extradition Treaty, and provides other
necessary explanations regarding the manner in which the U.S.-
EU Extradition Agreement is to operate. Articles VIII-IX
contain rules of temporal application, entry into force and
termination based on those set forth in Articles 16 and 22 of
the U.S.-EU Extradition Agreement.
Seven provisions of the U.S.-EU Extradition Agreement are
incorporated into the 1996 Treaty as follows: Article 5(1) of
the U.S.-EU Extradition Agreement (mode of transmission of
requests) replaces Article 8(1); Article 5(2) of the U.S.-EU
Extradition Agreement (certification, authentication of
legalization requirements) replaces Article 10; Article 7(1) of
the U.S.-EU Extradition Agreement (transmission of requests
following provisional arrest) supplements the terms of Article
8; Article 8(2) of the U.S.-EU Extradition Agreement (channel
for submission of supplementary information) supplements the
terms of Article 9; Article 10(2) of the U.S.-EU Extradition
Agreement (decision on competing request for extradition by
United States and request for surrender under the European
Arrest Warrant) supplements Article 15; Article 13 of the U.S.-
EU Extradition Agreement (capital punishment) replaces Article
7; and Article 14 of the U.S.-EU Extradition Agreement
(sensitive information in a request) supplements the provisions
of the 1996 Treaty.
Malta
On May 18, 2006, the United States and Malta signed a new
bilateral extradition treaty incorporating all of the
requirements set forth in Articles 4-14 of the U.S.-EU
Extradition Agreement. This new treaty, which is being
separately transmitted to the Senate for advice and consent to
ratification, serves as the instrument called for in Article 3
of the U.S.-EU Extradition Agreement.
The Netherlands
The bilateral extradition instrument with the Netherlands
was signed on September 29, 2004, and is entitled an agreement.
Article 1 of the bilateral agreement specifies the articles of
the U.S.-EU Extradition Agreement applicable between the United
States and the Netherlands. Article 2 provides that the Annex
to the agreement reflects the integrated text that shall apply
between the United States and the Netherlands. Article 3, in
accordance with Article 20 of the U.S.-EU Extradition
Agreement, provides that the instrument shall not apply to the
Netherlands Antilles or Aruba unless the United States and the
EU, by exchange of diplomatic notes duly confirmed by the
Netherlands, subsequently agree to extend it application to
them. Articles 4 and 5 contain rules of temporal application,
based on those set forth in Article 16 of the U.S.-EU
Extradition Agreement. Article 6 contains the provisions on
entry into force and termination, based on those set forth in
Article 22 of the U.S.-EU Extradition Agreement.
The Annex integrates the applicable provisions of the U.S.-
EU Extradition Agreement and the 1980 U.S.-Netherlands
Extradition Treaty. Seven substantive provisions of the U.S.-EU
Extradition Agreement are incorporated into the 1980 Treaty, as
follows: Article 5(1) of the U.S.-EU Extradition Agreement
(mode of transmission of requests) replaces Article 9(1);
Article 5(2) of the U.S.-EU Extradition Agreement
(certification, authentication or legalization requirements)
replaces Article 9(6); Article 7(1) of the U.S.-EU Extradition
Agreement (transmission of requests following provisional
arrest) is added as Article 9(7); Article 8(2) of the U.S.-EU
Extradition Agreement (channel for submission of supplementary
information) is added as Article 10(3); Article 10 of the U.S.-
EU Extradition Agreement (requests for extradition or surrender
made by several States) replaces Article 14; Article 13 of the
U.S.-EU Extradition Agreement (capital punishment) replaces
Article 7(1); and Article 14 of the U.S.-EU Extradition
Agreement (sensitive information in a request) is added as
Article 10 bis.
In addition, by exchange of diplomatic notes
contemporaneous with signature of the agreement, the United
States and the Netherlands agreed that the prior exchange of
diplomatic notes on July 11, 1991, with respect to the
application of Article 8 of the 1980 Treaty, shall continue to
apply to Article 8 of the Annex. The exchange of diplomatic
notes in conjunction with signing the Agreement also confirms
that the prior exchange of notes of December 31, 1985, apply
the 1980 Treaty to the Netherlands Antilles and Aruba, remains
unaffected by the U.S.-EU Extradition Agreement, and that the
explanatory note to the U.S.-EU Extradition Agreement also
applies to the corresponding provisions of the Annex.
Poland
The bilateral extradition instrument with Poland was signed
on June 9, 2006, and is entitled an agreement. Article 1 of the
bilateral agreement specifies the articles of the U.S.-EU
Extradition Agreement applicable between the United States and
Poland. Article 2 provides that the Annex to the agreement
reflects the integrated text that shall apply between the
United States and Poland. Articles 3 and 4 contain rules of
temporal application, based on those set forth in Article 16 of
the U.S.-EU Extradition Agreement. Article 5 contains the
provisions on entry into force and termination, based on those
set forth in Article 22 of the U.S.-EU Extradition Agreement.
The Annex integrates the applicable provisions of the U.S.-
EU Extradition Agreement and the 1996 U.S.-Poland Extradition
Treaty. Six substantive provisions of the U.S.-EU Extradition
Agreement are incorporated into the 1996 Treaty, as follows:
Article 5(1) of the U.S.-EU Extradition Agreement (mode of
transmission of requests) is set forth in a new formulation
replacing Article 9(1); Article 5(2) of the U.S.-EU Extradition
Agreement (certification, authentication or legalization
requirements) replaces Article 10; Article 7(1) of the U.S.-EU
Extradition Agreement (transmission of requests following
provisional arrest) is added as a new Article 12(4) (prior
Articles 12(4) and (5) are renumbered as Articles 12(5) and
(6)); Article 10 of the U.S.-EU Extradition Agreement (requests
for extradition or surrender made by several States) replaces
Article 17; Article 13 of the U.S.-EU Extradition Agreement
(capital punishment) replaces Article 6; and Article 14 of the
U.S.-EU Extradition Agreement (sensitive information in a
request) is added as Article 9 bis.
Portugal
The bilateral extradition instrument with Portugal was
signed on July 14, 2005. Paragraph 1 of the bilateral
instrument specifies the articles of the U.S.-EU Extradition
Agreement applicable between United States and Portugal.
Paragraph 2 provides that, in accordance with Article 2(3) of
the U.S.-EU Extradition Agreement, functions allocated to
Portugal's Justice Ministry shall be carried out by its
Prosecutor General's Office (Procuradoria Geral da Republica).
Paragraph 3 provides that the Annex to the instrument reflects
the provisions that shall be applied between the United States
and Portugal, without prejudice to provisions of the U.S.-EU
Extradition Agreement directly applicable. Paragraph 4
provides, in accordance with Article 17(2) of the U.S.-EU
Extradition Agreement, that where the constitutional principles
of, or final judicial decisions binding upon, the requested
State may pose an impediment to fulfillment of its obligation
to extradite, and neither the Annex nor the 1908 U.S.-Portugal
Convention on Extradition resolve the matter, consultations
shall take place. At the time of signature of the instrument,
Portugal made a unilateral declaration stating that under
Portuguese constitutional law impediments exist to extradition
with respect to offenses punishable by death or by imprisonment
for life or for an unlimited duration, and that in the event
that extradition could accordingly only be granted in
accordance with specific conditions considered consistent with
its Constitution, Portugal would invoke Paragraph 4 of the
bilateral instrument. Paragraphs 5 and 6 contain rules of
temporal application, based on those set forth in Article 16 of
the U.S.-EU Extradition Agreement. Paragraph 7 contains the
provisions on entry into force and termination, based on those
set forth in Article 22 of the U.S.-EU Extradition Agreement.
The Annex sets forth the texts of provisions derived from
the U.S.-EU Extradition Agreement that are to be applied to the
1908 Treaty. Eleven substantive provisions of the U.S.-EU
Extradition Agreement are incorporated therein, as follows:
Article 4 of the U.S.-EU Extradition Agreement (extraditable
offenses) modifies Article I and replaces Article II; Article
5(1) of the U.S.-EU Extradition Agreement (mode of transmission
of requests) and Article 7(1) (transmission of requests
following provisional arrest) replace Article XI(2); Articles
5(2) (certification, authentication or legalization
requirements), 6 (channel for transmission of requests for
provisional arrest), 8 (supplementary information), and 9
(temporary surrender) supplement the provisions of the 1908
Treaty; Article 10 of the U.S.-EU Extradition Agreement
(requests for extradition or surrender made by several States)
replaces Article VII; and Articles 11 (simplified extradition),
12 (transit), and 14 (sensitive information in a request) of
the U.S.-EU Extradition Agreement supplement the provisions of
the 1908 Treaty.
With respect to declarations under Article 19 of the U.S.-
EU Extradition Agreement, Portugal has designated its competent
judicial authority as the authority that will decide under
Article 10(2) of the U.S.-EU Extradition Agreement between a
U.S. request for extradition and a request for surrender
pursuant to the European Arrest Warrant for the same
individual.
Slovak Republic
The bilateral extradition instrument with the Slovak
Republic was signed on February 6, 2006. Paragraph 1 of the
bilateral instrument specifies the articles of the U.S.-EU
Extradition Agreement applicable between the United States and
the Slovak Republic. Paragraph 2 provides that the Annex to the
instrument reflects the integrated text that shall apply
between the United States and the Slovak Republic. Paragraphs 3
and 4 contain rules of temporal application, based on those set
forth in Article 16 of the U.S.-EU Extradition Agreement.
Article 5 contains the provisions on entry into force and
termination, based on those set forth in Article 22 of the
U.S.-EU Extradition Agreement.
The Annex integrates the applicable provisions of the U.S.-
EU Extradition Agreement with the 1925 U.S.-Czechoslovakia
Extradition Treaty and the 1935 Supplementary Extradition
Treaty. Twelve substantive provisions of the U.S.-EU
Extradition Agreement are incorporated, as follows: Article 4
of the U.S.-EU Extradition Agreement (extraditable offenses) is
reflected through the modification of Article I and replacement
of Article II; Articles 5(1) (mode of transmission of requests)
and 7(1) (transmission of requests following provisional
arrest) of the U.S.-EU Extradition Agreement are combined into
a new formulation which replaces former Article XI (numbered in
the Annex as Article XII(2)); Article 5(2) of the U.S.-EU
Extradition Agreement (certification, authentication or
legalization requirements) is added as Article XII(6); Article
6 of the U.S.-EU Extradition Agreement (channel of transmission
of requests for provisional arrest) is added as Article XII(3);
Article 8 of the U.S.-EU Extradition Agreement (supplementary
information) is added as Article XIII; Article 9 of the U.S.-EU
Extradition Agreement (temporary surrender) is reflected in the
modification of Article VI and the addition of Article VII:
Article 10 of the U.S.-EU Extradition Agreement (requests for
extradition or surrender made by several States) replaces
former Article VII of the existing treaty (numbered in the
Annex as Article VIII); Article 11 of the U.S.-EU Extradition
Agreement (simplified extradition procedures) is added as
Article XV; Article 12 of the U.S.-EU Extradition Agreement
(transit) is added as Article XVII; Article 13 of the U.S.-EU
Extradition Agreement (capital punishment) is added as Article
XVIII; and Article 14 of U.S.-EU Extradition Agreement
(sensitive information in a request) is added as Article XIV.
Although not required by the U.S.-EU Extradition Agreement,
the United States and the Slovak Republic also agreed to revise
Articles IV (rule of specialty), X (costs), and XII (4)
(provisional arrest) of the 1925 Treaty to provide for more
modern formulae, and to make minor numbering and terminological
modifications in the Annex.
Slovenia
The bilateral extradition instrument with Slovenia was
signed on October 17, 2005, and is entitled an agreement.
Paragraph 1 of the bilateral agreement specifies the articles
of the U.S.-EU Extradition Agreement applicable between the
United States and Slovenia. Paragraph 2 provides that the Annex
to the agreement reflects the provisions that shall be applied
between the United States and Slovenia. Paragraphs 3 and 4
contain rules of temporal application, based on those set forth
in Article 16 of the U.S.-EU Extradition Agreement. Paragraph 5
contains the provisions on entry into force and termination,
based on those set forth in Article 22 of the U.S.-EU
Extradition Agreement.
The Annex sets forth the texts of provisions derived from
the U.S.-EU Extradition Agreement that are to be applied to the
1901 U.S.-Serbia Extradition Treaty currently in force between
the United States and Slovenia. Twelve substantive provisions
of the U.S.-EU Extradition Agreement are incorporated therein,
as follows: Article 4 of the U.S.-EU Extradition Agreement
(extraditable offenses) modifies Article 1 and replaces Article
2; Articles 5(1) (mode of transmission of requests) and 7(1)
(transmission of requests following provisional arrest) of the
U.S.-EU Extradition Agreement replace Article 3(1); Article
5(2) of the U.S.-EU Extradition Agreement (certification,
authentication or legalization requirements) replaces Article
3(3); Article 6 of the U.S.-EU Extradition Agreement (channel
for transmission of requests for provisional arrest) replaces
Article 4(1); Article 8 of the U.S.-EU Extradition Agreement
(supplementary information) is added as Article 3 bis; Article
9 of the U.S.-EU Extradition Agreement (temporary surrender) is
added as Article 10 bis; Article 10 of the U.S.-EU Extradition
Agreement (requests for extradition or surrender made by
several States) replaces Article 10; Article 11 of the U.S.-EU
Extradition Agreement (simplified extradition) is added as
Article 10 ter; Article 12 of the U.S.-EU Extradition Agreement
(transit) is added as Article 11 bis; Article 13 of the U.S.-EU
Extradition Agreement (capital punishment) is added as Article
8 bis; and Article 14 of the U.S.-EU Extradition Agreement
(sensitive information in a request) is added as Article 3 ter.
With respect to declarations under Article 19 of the U.S.-
EU Extradition Agreement, Slovenia has designated the Supreme
Court of the Republic of Slovenia, or such other authority as
the Republic of Slovenia may subsequently designate, as the
competent authority that will decide under Article 10(2) of the
U.S.-EU Extradition Agreement between a U.S. request for
extradition and a request for surrender pursuant to the
European Arrest Warrant for the same individual.
Spain
The bilateral extradition instrument with Spain was signed
on December 17, 2004. The bilateral instrument, in paragraph 1,
specifies the articles of the U.S.-EU Extradition Agreement
applicable between the U.S. and Spain. Paragraph 2 provides
that the Annex to the instrument reflects the integrated text
that shall apply between the U.S. and Spain, and paragraphs 3-5
contain rules of temporal application, entry into force and
termination based on those set forth in Articles 16 and 22 of
the U.S.-EU Extradition Agreement.
The Annex integrates the applicable provisions of the U.S.-
EU Extradition Agreement, and the U.S.-Spain Extradition Treaty
signed May 29, 1970, the Supplementary Treaty signed January
25, 1975, the Second Supplementary Treaty signed February 9,
1988, and the Third Supplementary Treaty signed March 12, 1996.
Eight substantive provisions of the U.S.-EU Extradition
Agreement are incorporated therein as follows: Article 5(1) of
the U.S.-EU Extradition Agreement (mode of transmission of
request) replaces Article X(A); Article 5(2) of the U.S.-EU
Extradition Agreement (certification, authentication or
legalization requirements) replaces Article X(F); Article 7(1)
of the U.S.-EU Extradition Agreement (transmission of requests
following provisional arrest) is added as Article X(H); Article
8(2) of the U.S.-EU Extradition Agreement (channel for
submission of supplementary information) is added as Article
XII, third paragraph; Article 10 of the U.S.-EU Extradition
Agreement (requests for extradition or surrender made by
several States) replaces Article XIV; Article 12 of the U.S.-EU
Extradition Agreement (transit) is added as Article XV bis;
Article 13 of the U.S.-EU Extradition Agreement (capital
punishment) replaces Article VII; and Article 14 of the U.S.-EU
Extradition Agreement (sensitive information in a request) is
added as Article X bis.
In addition, at the time of signature of the instrument,
Spain declared that if the requesting State does not accept the
conditions set forth in Article 13 (capital punishment) of the
U.S.-EU Agreement, extradition shall not be granted.
Sweden
The bilateral extradition instrument with Sweden was signed
on December 16, 2004. Paragraph 1 of the bilateral instrument
specifies the articles of the U.S.-EU Extradition Agreement
applicable between the United States and Sweden. Paragraph 2
provides that the Annex to the instrument reflects the
integrated text that shall apply between the United States and
Sweden. Paragraphs 3 and 4 contain rules of temporal
application, based on those set forth in Article 16 of the
U.S.-EU Extradition Agreement. Paragraph 5 contains the
provisions on entry into force and termination, based on those
set forth in Article 22 of the U.S.-EU Extradition Agreement.
The Annex integrates the applicable provisions of the U.S.-
EU Extradition Agreement, the 1961 U.S.-Sweden Extradition
Convention and the 1983 U.S.-Sweden Supplementary Convention.
Ten substantive provisions of the U.S.-EU Extradition Agreement
are incorporated therein, as follows: Article 5(1) of the U.S.-
EU Extradition Agreement (mode of transmission of requests)
replaces Article X(1); Article 5(2) of the U.S.-EU Extradition
Agreement (certification, authentication or legalization
requirements) replaces Articles X(5); Article 6 of the U.S.-EU
Extradition Agreement (alternative channel for transmission of
requests for provisional arrest) is added to Article XIII(1);
Article 7(1) of the U.S.-EU Extradition Agreement (transmission
of requests following provisional arrest) is added as Article
X(7); Article 8 of the U.S.-EU Extradition Agreement
(submission of supplementary information) is added as Article
XII; Article 10 of the U.S.-EU Extradition Agreement (requests
for extradition or surrender made by several States) is added
as Article XVI; Article 11 of the U.S.-EU Extradition Agreement
(simplified extradition procedures) is added as Article XVII;
Article 12(3) of the U.S.-EU Extradition Agreement (procedures
for transit in the event of unscheduled landing of aircraft) is
added as Article XV(3); Article 13 of the U.S.-EU Extradition
Agreement (capital punishment) replaces Article VII; and
Article 14 of the U.S.-EU Extradition Agreement (sensitive
information in a request) ia added as Article XI.
United Kingdom
The bilateral extradition instrument with the United
Kingdom was signed on December 16, 2004. The instrument
foresees the entry into force of the 2003 U.S.-U.K. Extradition
Treaty prior to, or contemporaneous with, the entry into force
of the instrument.
The bilateral instrument, in paragraph 1, specifies the
articles of the U.S.-EU Extradition Agreement applicable
between the United States and the United Kingdom. Paragraph 2
provides that the Annex to the instrument reflects the
integrated text that shall apply between the United States and
the United Kingdom. Paragraph 3, in accordance with Article 20
of the U.S.-EU Extradition Agreement, provides that the
instrument applies to Great Britain and Northern Ireland, but
not to the Channel Islands, the Isle of Man or other
territories to which the 2003 Treaty applies. Paragraphs 4 and
5 contain rules of temporal application, based on those set
forth in Article 16 of the U.S.-EU Extradition Agreement.
Paragraph 6 contains the provisions on entry into force and
termination, based on those set forth in Article 22 of the
U.S.-EU Extradition Agreement.
The Annex integrates six provisions of the U.S.-EU
Extradition Agreement into the 2003 Treaty, as follows: Article
5(1) of the U.S.-EU Extradition Agreement (mode of transmission
of requests) is incorporated through Articles 8(1) and 12(4);
Article 5(2) of the U.S.-EU Extradition Agreement
(certification, authentication or legalization requirements)
replaces Article 9; Article 7(1) of the U.S.-EU Extradition
Agreement (transmission of requests following provisional
arrest) is incorporated through Article 12(4); Article 8(2) of
the U.S.-EU Extradition Agreement (channel for submission of
supplementary information) is added as Article 10(2); Article
10 of the U.S.-EU Extradition Agreement (decision on competing
request for extradition by United States and request for
surrender under the European Arrest Warrant) replaces Article
15; and Article 14 of the U.S.-EU Extradition Agreement
(sensitive information in a request) is added as Article 8 bis.
In addition, upon signature of the bilateral instrument,
the United States and United Kingdom exchanged diplomatic notes
stating that Article 5(2) of the U.S.-EU Extradition Agreement
(certification, authentication or legalization requirements)
will not be applied until such time as the United Kingdom
enacts enabling legislation for that purpose. Until then, the
Parties shall apply Article 9 of the 2003 Treaty.
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