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[Senate Treaty Document 109-17]
[From the U.S. Government Printing Office]



109th Congress 
 2d Session                      SENATE              Treaty Doc. 109-17
_______________________________________________________________________

                                     

 
                     EXTRADITION TREATY WITH MALTA

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

    EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE 
   GOVERNMENT OF MALTA, SIGNED ON MAY 18, 2006, AT VALLETTA, WITH AN 
                          EXCHANGE OF LETTERS




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 Malta, signed on May 18, 2006, at Valletta, that includes an 
exchange of letters that is an integral part of the treaty. 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 Malta would replace the 
outdated extradition treaty between the United States and Great 
Britain, signed on December 22, 1931, at London, and made 
applicable to Malta on June 24, 1935. 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--Estonia and Latvia--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 a person sought for any of a comprehensive list 
of serious offenses; in the past, Malta 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 Malta, and 
related exchange of letters, signed on May 18, 2006. Upon its 
entry into force, the Treaty would replace the Extradition 
Treaty between the United States and Great Britain, signed on 
December 22, 1931, and made applicable to Malta on June 24, 
1935. 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 enclosed with this report. I 
recommend that the Treaty, and related exchange of letters, 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: Overview and analysis of the provisions of the 
Agreement.

                     U.S.-Malta Extradition Treaty


                                overview


    The U.S.-Malta Extradition Treaty replaces an outdated 1931 
Treaty with Great Britain, which was made applicable between 
the United States and Malta in 1935. It also serves to 
implement between the United States and Malta 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 sought by the 
authorities in the Requesting State for trial or punishment for 
extraditable offenses.
    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 1931 
Treaty, obviates the need to renegotiate or supplement the 
Treaty as additional offenses become punishable under the laws 
in both States. Article 2(1) further defines an extraditable 
offense as including 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.
    Article 2(2) provides that if extradition is granted for an 
extraditable offense, it may 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.
    Additional flexibility is provided by Article 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 in accordance with the provisions of the 
Treaty if the laws in the Requested State provide for the 
punishment of such conduct committed outside its territory in 
similar circumstances. If the laws in the Requested State do 
not provide for the punishment of such conduct committed 
outside of its territory in similar circumstances, the 
executive authority of the Requested State, in its discretion, 
may grant extradition provided that all other requirements of 
the Treaty are met.
    Article 3(1) provides that extradition shall not be refused 
based on the nationality of the person sought, for any offense 
falling within a comprehensive enumerated list of thirty 
offenses. The list mirrors those offenses for which surrender 
of nationals by one member state of the European Union to 
another is mandatory under the European Arrest Warrant 
procedure. In addition, the Requested State may choose to 
extradite a national for an offense not enumerated in paragraph 
1. In the event that the Requested State denies extradition 
with respect to an offense not so enumerated, it shall, at the 
request of the Requesting State, submit the case to its 
competent authorities for prosecution. Under Article 3(4), the 
Parties also may agree to expand the list at a future time.
    Article 4 sets forth bases for the denial of extradition. 
As is customary in extradition treaties, paragraph 1 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 the 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 on genocide, terrorism, 
drugs, or other crimes 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 
willfully 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 or firearm capable of endangering life, of causing 
substantial bodily harm or substantial property damage; and (f) an 
attempt or a conspiracy to commit, or aiding or abetting a person who 
commits or attempts to commit, any of the foregoing offenses.
    Article 4(3) 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 provides that extradition shall not be granted if 
the executive authority of the Requested State determines that 
the request is politically motivated.
    Article 6(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, or where the person sought is otherwise immune from 
prosecution for that offense by reason of that State's law 
relating to prior prosecution. Article 6(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 that have been instituted against the 
person sought for those acts; or (c) are still investigating 
the person sought for the same acts for which extradition is 
sought.
    Letters exchanged at the time of signature of the Treaty 
and forming an integral part of it clarify the application of 
this Article in relation to the possible granting of clemency 
or amnesty to a person sought for extradition. The letters 
state that clemency and amnesty are decided under a Party's 
domestic law, and that in the event such a grant may have a 
bearing on a request for extradition, the Parties shall 
consult.
    Article 7 provides that the Requested State, if so required 
by its law, may take into account its or the Requesting State's 
laws concerning lapse of time.
    Article 8 concerns capital punishment, and is taken from 
Article 13 of the U.S.-EU Extradition Agreement. Pursuant to 
paragraph 1, 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 executive 
authority in the Requested State may refuse extradition unless 
the Requesting State provides an assurance that the death 
penalty will not be imposed or, if imposed, will not be carried 
out. Paragraph 2 provides that where such an assurance is 
given, the death penalty shall not be carried out.
    Article 9 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 13(4). 
Among other requirements, Article 9(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 or other competent authority; (b) a copy of 
the charging document, if any; 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 9(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 9(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 Malta. Article 9(6), addressing the submission of sensitive 
information in extradition requests, is taken from Article 14 
of the U.S.-EU Extradition Agreement.
    Article 10 concerns admissibility of documents, and is 
taken from Article 5 of the U.S.-EU Extradition Agreement. 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 11 provides that the Requested State may refuse 
extradition of a person found guilty in absentia in the 
Requesting State, unless the Requesting State provides 
sufficient assurances that the person was afforded an adequate 
opportunity to present a defense or that there are adequate 
remedies available to him after surrender.
    Article 12 provides that all documents submitted under the 
Treaty by the Requesting State shall be in English or 
accompanied by a translation into English.
    Article 13 sets forth procedures and describes the 
information that is required for the provisional arrest and 
detention of the person sought, pending presentation of the 
formal request for extradition. The Parties intend for 
provisional arrest requests to be made generally in cases of 
urgency, as determined by the executive authority of the 
Requested State. 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 13(4) 
provides that if the Requested State's executive authority has 
not received the request for extradition and supporting 
documents within forty (extendable to 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 13(5) explicitly 
provides that the discharge of a person from custody pursuant 
to Article 13(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 14 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. Such 
notification should be transmitted through the diplomatic 
channel and directly to the Requesting State's Justice 
authorities. If the request is denied in whole or in part, the 
Requested State must provide reasons 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 15 addresses deferred surrender. It 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 16, on temporary surrender, is taken from Article 9 
of the U.S.-EU Extradition Agreement. Paragraph 1 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. According to 
paragraph 2, 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. Time spent in custody in the 
Requesting State pending prosecution there may be deducted from 
the time to be served in the Requested State.
    Article 17 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, and is taken from 
Article 10 of the U.S.-EU Extradition Agreement. 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 Malta under the 
European Arrest Warrant.
    Article 18 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 carried out due to the death, 
disappearance, or escape of the person sought. The Requested 
State may condition the surrender of the items upon 
satisfactory assurances 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 19 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 lesser included offense shown by 
its constituent elements to be an extraditable offense and 
based on the same facts as the offense for which extradition 
was granted; (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. The treaty currently in place does not contain such 
a provision for waiver of the rule of speciality, and the 
preferred practice of States is not to waive the rule of 
speciality unless there is a treaty provision authorizing them 
to do so.
    Article 19(2) addresses the situation of an altered 
description of the offense charged occurring during a 
proceeding, and permits prosecution or sentencing only insofar 
as the offense as newly described is shown by its constituent 
elements to be an extraditable offense, is based on the same 
facts, and is punishable by the same or a lesser maximum 
penalty.
    Article 19(3) 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 19(4), 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 thirty (30) days of 
being in a position to leave.
    Article 20 permits surrender without further proceedings if 
the person sought waives extradition.
    Article 21 permits the person sought to consent to 
surrender in accordance with simplified extradition procedures, 
including by agreeing to waiver of protection of the rule of 
speciality.
    Article 22 governs the transit through the territory of one 
State of a person surrendered to the other State by a third 
country, and is taken from Article 12 of the U.S.-EU 
Extradition Agreement.
    Article 23 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 23(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 24 provides that the United States Department of 
Justice and the Ministry of Justice of Malta may consult in 
connection with the processing of individual cases and in 
furtherance of efficient application of the Treaty.
    Article 25 makes the Treaty applicable to offenses 
committed before as well as on or after the date it enters into 
force.
    Article 26 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 on the first day following the third month after the date 
on which the Parties have exchanged notification that the 
respective internal procedures have been completed. Article 
26(2) provides that, upon entry into force of the Treaty, the 
Extradition Treaty with the United Kingdom, signed at London, 
December 22, 1931 and previously applicable to Malta, shall 
cease to have any effect.
    Article 27 stipulates that 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.