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T.Doc.105-11 MUTUAL LEGAL ASSISTANCE TREATY WITH LUXEMBOURG ...


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105th Congress                                              Treaty Doc.
                                SENATE

 1st Session                                                     105-10
_______________________________________________________________________


 
                  EXTRADITION TREATY WITH LUXEMBOURG

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

   EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF 
AMERICA AND THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG, SIGNED AT 
                     WASHINGTON ON OCTOBER 1, 1996


<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>


 July 8, 1997.--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, July 8, 1997.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification, I transmit herewith the Extradition 
Treaty between the Government of the United States of America 
and the Government of the Grand Duchy of Luxembourg, signed at 
Washington on October 1, 1996.
    In addition, I transmit, for the information of the Senate, 
the report of the Department of State with respect to the 
Treaty. As the report explains, the Treaty will not require 
implementing legislation.
    The provisions in this Treaty follow generally the form and 
content of extradition treaties recently concluded by the 
United States.
    This Treaty will, upon entry into force, enhance 
cooperation between the law enforcement communities of both 
countries, and thereby make a significant contribution to 
international law enforcement efforts. It will supersede, with 
certain noted exceptions, the Extradition Treaty between the 
United States of America and the Grand Duchy of Luxembourg 
signed at Berlin on October 29, 1883, and the Supplementary 
Extradition Convention between the United States and Luxembourg 
signed at Luxembourg on April 24, 1935.
    I recommend that the Senate give early and favorable 
consideration to the Treaty and give its advice and consent to 
ratification.

                                                William J. Clinton.


                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                         Washington, June 12, 1997.
    The President: I have the honor to submit to you the 
Extradition Treaty between the Government of the United States 
of America and the Government of the Grand Duchy of Luxembourg 
(``the Treaty''), signed at Washington on October 1, 1996. I 
recommend that the Treaty be transmitted to the Senate for its 
advice and consent to ratification.
    The Treaty follows generally the form and content of 
extradition treaties recently concluded by the United States. 
It represents part of a concerted effort by the Department of 
State and the Department of Justice to develop modern 
extradition relationships to enhance the United States ability 
to prosecute serious offenders including, especially, narcotics 
traffickers.
    The Treaty marks a significant step in bilateral 
cooperation between the United States and Luxembourg. Upon 
entry into force, it will supersede the Extradition Treaty 
between the United States of America and the Grand Duchy of 
Luxembourg signed at Berlin on October 29, 1883, and the 
Supplementary Extradition Convention between the United States 
and Luxembourg that was signed at Luxembourg on April 24, 1935. 
That treaty and the supplementary extradition convention have 
become outmoded and the new treaty will provide significant 
improvements. The Treaty can be implemented without 
legislation.
    Article 1 obligates the Contracting States to extradite to 
each other, pursuant to the provisions of the Treaty, persons 
whom the authorities in the Requesting State have charged with, 
found guilty of, or convicted of an extraditable offense.
    Article 2 defines an extraditable offense as one punishable 
under the laws of both Contracting States by deprivation of 
liberty for a maximum period of more than one year, or by a 
more severe penalty. Use of such a ``dual criminality'' clause 
rather than a list of offenses covered by the Treaty obviates 
the need to renegotiate or supplement the Treaty as additional 
offenses become punishable under the laws of both Contracting 
States. Article 2(1) defines an extraditable offense to include 
also an attempt or aconspiracy to commit, or participation or 
complicity in the commission of an offense.
    Additional flexibility is provided by Article 2(3), which 
provides that in determining whether an offense is an 
extraditable offense, the Contracting States: (1) shall 
consider only the essential elements of the offense punishable 
under the laws of both States and disregard that the respective 
laws do not place the offense within the same category of 
offenses or describe the offense by the same terminology, and 
(2) shall not consider as an essential element of the offense 
punishable in the United States an element such as interstate 
transportation or use of the mails or of other facilities 
affecting interstate or foreign commerce, since such an element 
is for the purpose of establishing jurisdiction in a United 
States federal court.
    With regard to offenses committed outside the territory of 
the Requesting State, Article 2(4) provides that an offense 
shall be extraditable regardless of where the act or acts 
constituting the offense were committed. The United States 
recognizes the extraterritorial application of many of its 
criminal statutes and frequently makes requests for fugitives 
whose criminal activity occurred in foreign countries with the 
intent, actual or implied, of affecting the United States.
    Article 2(5) also permits extradition for offenses which 
are punishable by less than one year's imprisonment, if 
extradition has been granted for a more serious extraditable 
offense specified in the request, and all other requirements of 
extradition have been met.
    Article 2(6) provides that extradition may be denied if the 
prosecution of the offense or the execution of the penalty has 
been barred by lapse of time under the laws of the Requested 
State. Acts constituting an interruption or suspension of the 
time-bar in the Requesting State shall be taken into 
consideration to the extent possible.
    Article 3(1) provides that neither Contracting State shall 
be bound to extradite its own nationals, but that the Executive 
Authority of the United States--the Secretary of State--shall 
have the power to extradite U.S. nationals, if, in its 
discretion, it deems extradition appropriate. Article 3(2) 
provides that in cases in which extradition is refused solely 
on nationality grounds, the Requesting State may request that 
the case be submitted to the competent authorities of the 
Requested State for prosecution.
    As is customary in extradition treaties, Article 4 
incorporates a political offense exception to the obligation to 
extradite. Article 4(1) states generally that extradition shall 
not be granted if the offense for which extradition is 
requested is a political offense. Article 4(2) expressly 
excludes from the reach of the political offense exception 
several categories of offenses, including the following:
          (i) a murder or willful crime against the person of a 
        Head of State of one of the Contracting States, or a 
        member of the Head of State's family;
          (ii) an offense for which both Contracting States 
        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;
          (iii) murder, manslaughter, malicious wounding or 
        inflicting grievous bodily harm;
          (iv) an offense involving kidnapping, abduction, or 
        any form of unlawful detention, including the taking of 
        a hostage;
          (v) placing or using an explosive, incendiary or 
        destructive device or substance capable of endangering 
        life or causing grievous bodily harm;
          (vi) an attempt to commit one of the offenses 
        described above or participation or complicity in the 
        commission of those offenses; and
          (vii) an ``association of wrongdoers'' formed to 
        commit any of the offenses described above under the 
        laws of Luxembourg or a conspiracy to commit any such 
        offense under the laws of the United States.
    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 the executive authority of the Requested State 
shall refuse extradition for an offense under military law 
which is not an offense under ordinary criminal law.
    Article 5(1) provides that extradition may be denied if the 
offense for which extradition is sought is a fiscal offense. 
Article 5(2) defines fiscal offenses to include (a) an offense 
relating to the reporting and payment of taxes or customs 
duties, or (b) an offense relating to currency exchange laws. 
Article 5(3) provides that a party may exclude from the Article 
5(2) definition of a fiscal offense, offenses related to drug 
trafficking, crimes or violence or other serious criminal 
conduct without regard to whether extradition is sought for 
such criminal activity.
    Article 6 bars extradition when the person sought has been 
found guilty, convicted or acquitted in the Requested State for 
the offense for which extradition is requested, but does not 
bar extradition if the competent authorities in the Requested 
State have declined to prosecute or have decided to discontinue 
criminal proceedings.
    Under Article 7, when an offense for which extradition is 
sought is punishable by death under the laws in the Requesting 
State and is not so punishable under the laws in the Requested 
State, the Requested State must refuse extradition unless the 
Requesting State provides assurances that the death penalty 
will not be imposed or, if imposed, will not be carried out. 
This Article also provides that the executive authority of the 
Requested State may refuse extradition for humanitarian reasons 
unless the Requesting State provides such assurances as the 
Requested State considers sufficient to take into account such 
humanitarian concerns.
    Article 8 establishes the procedures and describes the 
documents that are required to support an extradition request. 
The Article requires that all requests be submitted through the 
diplomatic channel.
    Article 9 allows for the provision of supplementary 
information within an established time-frame if, at any stage 
of an extradition proceeding, the Requested State determines 
that the information in support of the extradition request 
isnot sufficient to fulfill the requirements of its law with respect to 
extradition.
    Article 10 establishes the procedures under which documents 
submitted pursuant to the provisions of this Treaty shall be 
received and admitted into evidence.
    Article 11 provides that all documents submitted by the 
Requesting State shall be translated into the language of the 
Requested State.
    Article 12 sets forth procedures for the provisional arrest 
and detention, in case of urgency, of a person sought pending 
presentation of the formal request for extradition. Article 
12(4) provides that if the Requested State's executive 
authority has not received the request for extradition and 
supporting documentation required in Article 8 within sixty 
(60) days after the provisional arrest, the person may be 
discharged from custody. Article 12(5) provides explicitly that 
discharge from custody pursuant to Article 12(4) does not 
prejudice subsequent rearrest and extradition upon later 
delivery of the extradition request and supporting documents.
    Article 13 specifies the procedures governing surrender and 
return of persons sought. It requires the Requested State to 
provide prompt notice to the Requesting State regarding its 
extradition decision. If the request is denied in whole or in 
part, Article 13(2) requires the Requested State to provide 
information regarding the reasons therefor. If extradition is 
granted, the authorities of the Contracting States are to agree 
on time and place of surrender of the person sought.
    Article 14 concerns temporary and deferred surrender. If a 
person is being prosecuted or is serving a sentence in the 
Requested State for a different offense, that State may (a) 
temporarily surrender the person to the Requesting State for 
the purpose of prosecution, or (b) defer surrender until the 
proceedings are concluded or the sentence served.
    Article 15 sets forth a non-exhaustive list of factors to 
be considered by the Requested State in determining to which 
State to surrender a person sought by more than one State.
    Article 16 provides for the seizure and surrender to the 
Requesting State all articles, documents, and evidence 
connected with the offense for which extradition is granted, to 
the extent permitted under the law of the Requested State. Such 
property may be surrendered even when extradition cannot be 
effected due to the death, disappearance, or escape of the 
person sought. Surrender of property may be deferred if it is 
needed as evidence in the Requested State and may be 
conditioned upon satisfactory assurances that it will be 
returned. Article 16(3) imposes anobligation to respect the 
rights of third parties in affected property.
    Article 17 sets forth the rule of speciality. It provides, 
subject to specific exceptions, that a person extradited under 
the Treaty may not be detained, tried, or punished in the 
Requesting State for an offense other than that for which 
extradition has been granted, unless the offense was committed 
after the extradition of the person; the person leaves the 
territory of the Requesting State after extradition and 
voluntarily returns to it; the person does not leave the 
territory of the Requesting State within 15 days of the day on 
which that person is free to leave; or the executive authority 
of the Requested State consents. Similarly, the Requesting 
State may not extradite such person to a third state for an 
offense committed prior to the original surrender unless the 
Requested State consents.
    Article 18 permits surrender to the Requesting State 
without further proceedings if the person sought consents to 
surrender.
    Article 19 governs the transit through the territory of one 
Contracting State of a person being surrendered to the other 
State by a third State.
    Article 20 contains provisions on representation and 
expenses that are similar to those found in other modern 
extradition treaties. Specifically, the Requested State shall, 
to the extent possible under its laws, represent the interests 
of the Requesting State in extradition proceedings. The 
Requesting State shall bear the expenses related to the 

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