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T.Doc.107-7 THE PROTOCOL TO THE AGREEMENT OF THE INTERNATIONAL ATOMIC ENERGY ...
107th Congress Treaty Doc. SENATE 2d Session 107-6 _______________________________________________________________________ EXTRADITION TREATY WITH PERU __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF PERU, SIGNED AT LIMA ON JULY 26, 2001 <GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT> May 8, 2002.--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 __________ U.S. GOVERNMENT PRINTING OFFICE 99-118 DTP WASHINGTON : 2002 LETTER OF TRANSMITTAL ---------- The White House, May 8, 2002. 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 Republic of Peru, signed at Lima on July 26, 2001. 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the form and content of modern extradition treaties recently concluded by the United States and will replace the outdated extradition treaty in force between the two countries signed in 1899. The Treaty will, upon entry into force, enhance cooperation between the law enforcement communities of the two countries. It will make a significant contribution to international law enforcement efforts against serious offenses, including terrorism, organized crime, and drug-trafficking. I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification. George W. Bush. LETTER OF SUBMITTAL ---------- April 20, 2002. The President: I have the honor to submit to you the Extradition Treaty Between the United States of America and the Republic of Peru, signed at Lima on July 26, 2001. Upon its entry into force, the Treaty would replace the outdated extradition treaty now in force between the two countries that was signed in 1899. 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 other extradition treaties recently concluded by the United States. The Treaty represents a major step forward in U.S. efforts to strengthen cooperation with countries in the region in combating terrorism, organized crime, drug trafficking and other offenses. It is an important part of a concerted effort by the Department of State and the Department of Justice to modernize the legal tools available for the extradition of serious offenders. The Treaty is designed to be self-executing and will not require implementing legislation. Article I obligates each Contracting State to extradite to the other, pursuant to the provisions of the Treaty, persons whom the authorities in the Requesting State have charged with, found guilty of, or sentenced for an extraditable offense. Article II concerns extraditable offenses. Article II(1) defines an extraditable offense as one punishable under the laws in 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, as in the 1899 extradition treaty, obviates the need to renegotiate or supplement the Treaty as additional offenses become punishable under the laws in both Contracting States. Article II(2) defines an extraditable offense further as including an attempt or conspiracy to commit, or association or participation in the commission of, an offense described in paragraph 1. Additional flexibility is provided by Article II(3), which provides that an offense shall be an extraditable offense regardless of (a) whether the laws in the Contracting States place the offense within a different category of offenses or describe the offense by different terminology, so long as the underlying conduct is criminal in both States; (b) whether the offense is one for which the laws of the Requesting State require the showing of such matters as interstate transportation, or use of the mails or other facilities affecting interstate or foreign commerce for the purpose of establishing jurisdiction of its courts; or (c) where the offense was committed. Finally, Article II(4) provides that if extradition is granted for one or more extraditable offenses, it shall also be granted for any other offense specified in the request even if that offense does not meet the minimum penalty requirement, provided that all other extradition requirements are met. Article III provides that extradition shall not be refused on the ground that the person sought is a national of the Requested State. Article IV sets forth bases for the denial of extradition. Paragraph 1 bars extradition: (a) if the person sought has been tried and convicted or acquitted in the Requested State for the same offense (but does not preclude extradition if the competent authorities in the Requested State have decided not to prosecute such person for the same acts or have decided to discontinue criminal proceedings against the person for those acts); or (b) if prosecution of the offense or execution of the penalty is barred by lapse of time under the laws of the Requested State. As customary in extradition treaties, Article IV(2) provides that extradition shall not be granted if the offense for which extradition is requested constitutes a political offense. It also specifies the following specific categories of offenses that are not to be considered political offenses: (a) a murder or other violent crime against a Head of State of one of the Contracting States, or a member of a Head of State's family; (b) genocide, as described in the Convention on the Prevention and Punishment of the Crime of Genocide, done at Paris on December 9, 1948; (c) 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, including but not limited to illicit drug trafficking and related offenses, as described in the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna on December 20, 1988; and offenses related to terrorism, as set forth in multilateral international agreements to which both Contracting States are parties (e.g., the Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on December 16, 1970); and (d) an attempt or conspiracy to commit, or association or participation in the commission of, any of the foregoing offenses. Article IV(3) requires that extradition not be granted if the executive authority of the Requested State determines that the request was politically motivated. Article IV(4) provides that the executive authority of the Requested State may also refuse extradition for offenses under military law which are not offenses under ordinary criminal law (e.g., desertion). Finally, under Article IV(5), the executive authority of the Requested State may refuse extradition if the person sought would be tried, or punished as the result of a trial, under extraordinary criminal laws or procedures in the Requesting State. This provision was included in the Treaty at the instance of the U.S. delegation in response to concerns over due process before special terrorism tribunals in Peru. Under this paragraph, the executive authority of the Requested State would have discretion to deny extradition if the person sought would be or has been tried in a special terrorism tribunal and there were no procedures in place to safeguard the due process rights of the accused. Article V concerns capital punishment. Under Article V, 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 of the Requested State may refuse extradition unless the Requesting State provides an assurance that the person sought will not be executed. The United States has agreed to similar formulations in other modern extradition treaties (e.g., those with Argentina, the Republic of Korea and India). In cases in which such an assurance is provided, the death penalty shall not be carried out, even if imposed by the courts in the Requesting State. Article V(2) provides further that, except in instances in which the death penalty applies, extradition shall not be refused, nor conditions imposed, on the basis that the penalty for the offense is greater in the Requesting State than in the Requested State. Article VI establishes the procedures and describes the documents that are required to support a request for extradition. All requests for extradition must be submitted through the diplomatic channel. Among other requirements, Article VI(3) provides that a request for the extradition of a person sought for prosecution must be supported by such evidence as would be sufficient to justify committal for trial of the person if the offense had been committed in the Requested State. Under Article VI(5), if the Requested State requires additional evidence or information to enable it to decide on the request for extradition, such evidence or information shall be submitted to it within such time as that State shall require. Article VII requires that all documents submitted by the Requesting State be accompanied by a translation into the language of the Requested State and establishes the procedures under which such documents shall be received and admitted as evidence in the Requested State. Article VIII sets forth procedures and describes the information that is required for the provisional arrest and detention of the person sought, in case of urgency, pending presentation of the formal request for extradition. In particular, Article VIII(4) provides that if the Requested State's executive authority has not received the extradition request and supporting documents required by Article VI within sixty days from the date of the provisional arrest, the person may be discharged from custody. Article VIII(5) explicitly provides that such a discharge from custody shall not be an obstacle to the person's re-arrest and extradition if the formal extradition request is received later. Article IX specifies the procedures governing a decision on the extradition request and the surrender of the person sought. It requires the Requested State to process the extradition request in accordance with the procedures set forth in its law and the Treaty, and to promptly notify the Requesting State, through the diplomatic channel, of its decision regarding a request. If extradition is granted, the Contracting 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, if any, the person may be discharged from custody and the Requested State may thereafter refuse extradition for the same offense. Article IX also provides that if unforeseen circumstances prevent the surrender of the person sought, the States shall agree on a new date, consistent with the laws of the Requested State. If the request is denied in whole or in part, Article IX(4) requires the Requested State to provide an explanation of the reasons for the denial and, upon request, copies of pertinent decisions. Article X addresses deferred and temporary surrender. Under Article X(1) if a person whose extradition is sought is being prosecuted or is serving a sentence in the Requested State, that State may postpone the extradition proceedings against, or the surrender of, that person until its prosecution has been concluded or the sentence has been served. Alternatively, Article X(2) provides that in such circumstances the Requested State may, in exceptional cases, temporarily surrender the person to the Requesting State exclusively for the purpose of prosecution. The person so surrendered is to be kept in custody in the Requesting State and returned to the Requested State after the conclusion of the proceedings against that person, on conditions agreed between the Contracting States. Article XI 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. Article XII provides that the Requested State may, to the extent permitted under its law, seize and surrender to the Requesting State all articles, documents and evidence connected with the offense for 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. Surrender of such items may be deferred for such time as is deemed necessary for an investigation or proceeding in the Requested State or may be made on condition that they be returned to the Requested State as soon as practicable. Article XII(3) provides that the rights of the Requested State or of third parties in such items must be duly respected. Article XIII sets forth the rule of specialty 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 any offense (a) 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) committed after the extradition of the person; or (c) for which the executive authority of the Requested State consents to the person's detention, trial or punishment. Article XIII (2) provides that a person extradited under the Treaty may not be extradited to a third State for an offense committed prior to surrender unless the surrendering State consents. Under paragraph 3, these restrictions do not apply if the person has left the jurisdiction of the State to which surrendered and voluntarily returned or has had the opportunity to leave and has not done so within ten days. Article XIV permits surrender without further proceedings if the person sought consents to be surrendered. Article XV governs the transit through the territory of one
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