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