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[Senate Treaty Document 109-16]
[From the U.S. Government Printing Office]



109th Congress
 2d Session                      SENATE                     Treaty Doc.
                                                                 109-16
_______________________________________________________________________

                                     

 
                    EXTRADITION TREATY WITH ESTONIA

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

    EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE 
 GOVERNMENT OF THE REPUBLIC OF ESTONIA, SIGNED ON FEBRUARY 8, 2006, AT 
                                TALLINN




September 29, 2006.--Treaty was read the first time, and together with 
the accompanying papers, referred to the Committee on Foreign Relations 
          and ordered to be printed for the use of the Senate
                         LETTER OF TRANSMITTAL

                              ----------                              

                               The White House, September 29, 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 Extradition 
Treaty between the United States of America and the Government 
of the Republic of Estonia, signed on February 8, 2006, at 
Tallinn. I also transmit, for the information of the Senate, 
the report of the Department of State with respect to the 
treaty.
    The new extradition treaty with Estonia would replace the 
outdated extradition treaty between the United States and 
Estonia, signed on November 8, 1923, at Tallinn, and the 
Supplementary Extradition Treaty, signed on October 10, 1934, 
at Washington. The treaty also fulfills the requirement for a 
bilateral instrument between the United States and each 
European Union (EU) Member State in order to implement the 
Extradition Agreement between the United States and the EU. Two 
other comprehensive new extradition treaties with EU Member 
States--Latvia and Malta--likewise also serve as the requisite 
bilateral instruments pursuant to the U.S.-EU Agreement, and 
therefore also are being submitted separately and individually.
    The treaty follows generally the form and content of other 
extradition treaties recently concluded by the United States. 
It would replace an outmoded list of extraditable offenses with 
a modern ``dual criminality'' approach, which would enable 
extradition for such offenses as money laundering and other 
newer offenses not appearing on the list. The treaty also 
contains a modernized ``political offense'' clause. It further 
provides that extradition shall not be refused based on the 
nationality of the person sought; in the past, Estonia has 
declined to extradite its nationals to the United States. 
Finally, the new treaty incorporates a series of procedural 
improvements to streamline and speed the extradition process.
    I recommend that the Senate give early and favorable 
consideration to the treaty.
                                                    George W. Bush.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                        Washington, August 3, 2006.
The President,
The White House.
    The President: I have the honor to submit to you the 
Extradition Treaty between the United States and Estonia, 
signed on February 8, 2006. Upon its entry into force, the 
Treaty would replace the outdated Extradition Treaty between 
the United States and Estonia, signed on November 8, 1923, and 
the Supplementary Extradition Treaty, signed on October 10, 
1934. It also fulfills the requirement for a bilateral 
instrument between the United States and each member state of 
the European Union implementing the Extradition Agreement 
between the United States and the European Union signed on June 
25, 2003, which is being separately submitted. A detailed, 
article-by-article analysis is enclosed with this report. I 
recommend that the Treaty be transmitted to the Senate for its 
advice and consent to ratification. The Treaty is self-
executing and will not require implementing legislation.
    Respectfully submitted.
                                                  Condoleezza Rice.
    Enclosures: As stated.

                    U.S.-Estonia Extradition Treaty


                                OVERVIEW

    The U.S.-Estonia Extradition Treaty replaces an outdated 
1923 Treaty and 1934 Supplementary Treaty. It also serves to 
implement between the United States and Estonia the provisions 
of the U.S.-EU Extradition Agreement.
    The following is an Article-by-Article description of the 
provisions of the Treaty.
    Article 1 obligates each Party to extradite to the other, 
pursuant to the provisions of the Treaty, persons whom the 
authorities in the Requesting State have charged with or 
convicted of an extraditable offense.
    Article 2 concerns extraditable offenses and is taken from 
Article 4 of the U.S.-EU Extradition Agreement. Article 2(1) 
defines an offense as extraditable if the conduct on which the 
offense is based is punishable under the laws in both States by 
deprivation of liberty for a period of more than one year or by 
a more severe penalty. Use of a pure ``dual criminality'' 
clause, rather than categories of offenses listed in the 1923 
Treaty, obviates the need to renegotiate or supplement the 
Treaty as additional offenses become punishable under the laws 
in both States.
    Article 2(2) further defines an extraditable offense as an 
attempt or a conspiracy to commit, or participation in the 
commission of an extraditable offense. 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.
    Additional flexibility is provided by ArticIe 2(3), which 
provides that an offense shall be an extraditable offense: a) 
whether or not the laws in the Requesting and Requested States 
place the offense within the same category of offenses or 
describe the offense by the same terminology; b) 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 jurisdictional only; or c) 
in criminal cases relating to taxes, customs duties, currency 
control or commodities.
    With regard to offenses committed outside the territory of 
the Requesting State, Article 2(4) provides that extradition 
shall be granted for an extraditable offense regardless of 
where the act or acts constituting the offense were committed.
    Article 2(5) provides that if extradition is granted for an 
extraditable offense, it shall also be granted for any other 
offense specified in the request if the latter offense is 
punishable by one year's deprivation of liberty or less, 
provided that all other requirements for extradition are met.
    Article 3 provides that extradition shall not be refused 
based on the nationality of the person sought.
    Article 4 sets forth bases for the denial of extradition. 
As is customary in extradition treaties, paragraph I provides 
that extradition shall not be granted if the offense for which 
extradition is requested constitutes a political offense.
    Article 4(2) specifies six categories of offenses that 
shall not be considered to be political offenses: (a) a murder 
or other violent crime against a Head of State of one of the 
Parties, or of a member of the Head of State's family; (b) an 
offense for which both Parties have the obligation pursuant to 
a multilateral international agreement to extradite the person 
sought or to submit the case to their competent authorities for 
decision as to prosecution; (c) murder, manslaughter, malicious 
wounding, or inflicting grievous bodily harm; (d) an offense 
involving kidnapping, abduction, or any form of unlawful 
detention, including the taking of a hostage; (e) placing or 
using an explosive, incendiary, or destructive device capable 
of endangering life, of causing substantial bodily harm, or of 
causing grievous property damage; and (f) a conspiracy or 
attempt to commit any of the foregoing offenses, or 
participation in the commission of such offenses.
    Article 4(3) provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request was politically motivated.
    Article 4(4) provides that offenses under military law that 
are not offenses under ordinary criminal law (e.g., desertion) 
are excluded from the scope of the Treaty.
    Article 5(1) provides that extradition shall not be granted 
when the person sought has been convicted or acquitted in the 
Requested State for the offense for which extradition is 
requested. Article 5(2) provides that extradition shall not be 
precluded by the fact that the competent authorities of the 
Requested State: (a) have decided not to prosecute the person 
sought for the acts for which extradition is requested; (b) 
have decided to discontinue any criminal proceedings which have 
been instituted against the person sought for those acts; or 
(c) have decided to investigate the person sought for the same 
acts.
    Article 6 provides that extradition shall not be granted 
when the prosecution or the enforcement of the penalty for the 
offense for which extradition has been sought has become barred 
by lapse of time according to the law of the Requesting State.
    Article 7 concerns capital punishment, and is taken from 
Article 13 of the U.S.-EU Extradition Agreement. When an 
offense for which exadition 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 the condition that the death penalty shall not 
be imposed on the person sought, or if for procedural reasons 
such condition cannot be complied with by the Requesting State, 
on condition that the death penalty if imposed shall not be 
carried out. If the Requesting State accepts extradition 
subject to conditions pursuant to this Article, it shall comply 
with the conditions. If the Requesting State does not accept 
the conditions, the request for extradition may be denied.
    Article 8 establishes the procedures and describes the 
documents that are required to support a request for 
extradition. Paragraph 1, which is taken from Article 5(1) of 
the U.S.-EU Extradition Agreement, provides that all requests 
for extradition must be submitted through the diplomatic 
channel, which shall include transmission under Article 11(4). 
Among other requirements, Article 8(3) provides that a request 
for the extradition of a person sought for prosecution must be 
supported by: (a) a copy of the warrant or order of arrest 
issued by a judge, court, or other competent authority; (b) a 
copy of the charging document; and (c) such information as 
would provide a reasonable basis to believe that the person 
sought committed the offense for which extradition is sought.
    Pursuant to Article 8(4), a request for extradition of a 
person who has been convicted in absentia must be supported by 
the documents required in a request for a person who is sought 
for prosecution.
    Article 8(5), which is taken from Article 8 of the U.S.-EU 
Extradition Agreement, authorizes the furnishing of additional 
information, if the Requested State deems it necessary to 
support an extradition request, and specifies that such 
information may be requested and supplied directly between the 
United States Department of Justice and the Ministry of Justice 
of the Republic of Estonia. Article 8(6), which is taken from 
Article 14 of the U.S.-EU Extradition Agreement, addresses the 
submission of sensitive information in extradition requests.
    Article 9, which is taken from Article 5 of the U.S.-EU 
Extradition Agreement, concerns admissibility of documents. It 
provides that documents bearing the certificate or seal of 
either the Ministry of Justice or foreign affairs Ministry or 
Department of the Requesting State shall be admissible in 
extradition proceedings in the Requested State without further 
certification.
    Article 10 provides that all documents submitted under the 
Treaty by the Requesting State shall be translated into the 
language of the Requested State.
    Article 11 sets forth procedures and describes the 
information that is required for the provisional arrest and 
detention of the person sought, in an urgent situation, pending 
presentation of the formal request for extradition. Paragraph 
1, which sets forth procedures for transmission of a request 
for provisional arrest, is taken from Article 7 of the U.S.-EU 
Extradition Agreement. Article 11(4) provides that if the 
Requested State's executive authority has not received the 
request for extradition and supporting documents within sixty 
days from the date of provisional arrest, the person may be 
discharged from custody. Paragraph 4 also provides an 
alternative channel for receipt of extradition requests with 
respect to persons who have been provisionally arrested, taken 
from Article 6 of the U.S.-EU Extradition Agreement. Article 
11(5) explicitly provides that the discharge of a person from 
custody pursuant to Article 11(4) does not prejudice the 
person's subsequent rearrest and extradition if the extradition 
request and supporting documents are delivered at a later date.
    Article 12 specifies the procedures governing a decision on 
the extradition request and the surrender of the person sought. 
It requires the Requested State to promptly notify the 
Requesting State of its decision regarding a request. If the 
request is denied in whole or in part, the Requested State must 
provide an explanation for the denial and, upon request, copies 
of pertinent judicial decisions. If extradition is granted, the 
States shall agree on the time and place for the surrender of 
the person sought. If the person sought is not removed from the 
territory of the Requested State within the time period 
prescribed by the law of that State, the person may be 
discharged from custody, and the Requested State, in its 
discretion, may subsequently refuse extradition for the same 
offense(s).
    Article 13 addresses temporary and deferred surrender. 
Paragraph 1, on temporary surrender, is taken from Article 9 of 
the U.S.-EU Extradition Agreement. It provides that if a person 
whose extradition is sought is being proceeded against or is 
serving a sentence in the Requested State, the Requested State 
may temporarily surrender the person to the Requesting State 
for the purpose of prosecution. The Requesting State shall keep 
the person so surrendered in custody and shall return that 
person to the Requested State after the conclusion of the 
proceedings against that person, in accordance with conditions 
to be determined by mutual agreement of the States.
    Paragraph 2, on deferred surrender, provides that the 
Requested State may postpone the extradition proceedings 
against a person who is being prosecuted or who is serving a 
sentence in that state.
    Article 14, which is taken from Article 10 of the U.S.-EU 
Extradition Agreement, provides a non-exclusive list of factors 
to be considered by the executive authority of the Requested 
State in determining to which State to surrender a person whose 
extradition is sought by more than one State. It includes, in 
paragraph 2, language establishing the applicability of this 
analysis to competing requests from the United States and from 
a member state of the European Union made to Estonia under the 
European Arrest Warrant.
    Article 15 provides that the Requested State may, to the 
extent permitted under its law, seize and surrender to the 
Requesting State all items, including articles, documents, and 
evidence, that are connected with the offense in respect of 
which extradition is granted. Such items may be surrendered 
even if the extradition cannot be effected due to the death, 
disappearance, or escape of the person sought, and prior to the 
extradition, if requested pursuant to the mutual legal 
assistance treaty between the parties. The Requested State may 
condition the surrender of the items upon satisfactory 
assurances from the Requesting State that the property will be 
returned to the Requested State as soon as practicable. The 
Requested State may also defer the surrender of such items if 
they are needed as evidence in the Requested State. The rights 
of third parties in such items are to be respected in 
accordance with the laws of the Requested State.
    Article 16 sets forth the rule of speciality under 
international law. Paragraph 1 provides, subject to specific 
exceptions set forth in paragraph 3, that a person extradited 
under the Treaty may not be detained, tried, or punished in the 
Requesting State except for: (a) any offense for which 
extradition was granted, or a differently denominated offense 
based on the same facts as the offense for which extradition 
was granted, provided such offense is extraditable, or is a 
lesser included offense; (b) any offense committed after the 
extradition of the person; or (c) any offense for which the 
executive authority of the Requested State waives the rule of 
speciality and thereby consents to the person's detention, 
trial, or punishment.
    Article 16(2) provides that a person extradited under the 
Treaty may not be the subject of onward extradition to a third 
State or an international tribunal for any offense committed 
prior to the extradition to the Requesting State unless the 
Requested State consents.
    Under Article 16(3), these restrictions shall not prevent 
the detention, trial, or punishment of an extradited person, or 
the extradition of a person to a third State, if the extradited 
person leaves the territory of the Requesting State after 
extradition and voluntarily returns to it or fails to leave the 
territory of the Requesting State within ten days of being free 
to do so.
    Article 17 permits surrender as expeditiously as possible 
if the person sought consents to be surrendered to the 
Requesting State.
    Article 18, which is taken from Article 12 of the U.S.-EU 
Extradition Agreement, governs the transit through the 
territory of one State of a person surrendered to the other 
State by a third country.
    Article 19 contains provisions on representation and 
expenses. Specifically, the Requested State is required to 
advise, assist, appear in court on behalf of, and represent the 
interests of the Requesting State in any proceedings arising 
out of a request for extradition. The Requested State also 
bears all expenses incurred in that State in connection with 
the extradition proceedings, except that the Requesting State 
pays expenses related to translation of extradition documents 
and the transportation of the person surrendered. Article 19(3) 
specifies that neither State shall make any pecuniary claim 
against the other arising out of the arrest, detention, 
examination, or surrender of persons under the Treaty.
    Article 20 provides that the United States Department of 
Justice and the Ministry of Justice of the Republic of Estonia 
may consult in connection with the processing of individual 
cases and in furtherance of efficient implementation of the 
Treaty.
    Article 21 makes the Treaty applicable to offenses 
committed before as well as on or after the date it enters into 
force.
    Article 22 contains final clauses dealing with the Treaty's 
entry into force and termination. It provides that the Treaty 
is subject to ratification and that the Treaty shall enter into 
force upon the exchange of the instruments of ratification. 
Article 22(3) provides that, upon entry into force of the 
Treaty, the Treaty of Extradition between the United States of 
America and the Republic of Estonia, signed at Tallinn on 
November 8, 1923, and the Supplementary Extradition Treaty 
signed at Washington on October 10, 1934, shall cease to have 
any effect. Either State may terminate the Treaty with six 
months written notice to the other State through the diplomatic 
channel.
    The Department of Justice joins the Department of State in 
favoring approval of this Treaty by the Senate at the earliest 
possible date.