[Senate Executive Report 104-32]
[From the U.S. Government Printing Office]



104th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      104-32
_______________________________________________________________________


 
                  EXTRADITION TREATY WITH SWITZERLAND

                                _______
                                

                 July 30, 1996.--Ordered to be printed

_______________________________________________________________________


   Mr. Helms, from the Committee on Foreign Relations, submitted the 
                               following

                              R E P O R T

                    [To accompany Treaty Doc. 104-9]

    The Committee on Foreign Relations to which was referred 
the Extradition Treaty between the Government of the United 
States of America and the Government of the Swiss 
Confederation, signed at Washington on November 14, 1990, 
having considered the same, reports favorably thereon with one 
proviso and recommends that the Senate give its advice and 
consent to the ratification thereof as set forth in this report 
and the accompanying resolution of ratification.

                               I. Purpose

    Modern extradition treaties (1) identify the offenses for 
which extradition will be granted, (2) establish procedures to 
be followed in presenting extradition requests, (3) enumerate 
exceptions to the duty to extradite, (4) specify the evidence 
required to support a finding of a duty to extradite, and (5) 
set forth administrative provisions for bearing costs and legal 
representation.

                             II. Background

    On November 14, 1990, the President signed an extradition 
treaty with Switzerland. The Treaty was transmitted to the 
Senate for its advice and consent to ratification on June 12, 
1995. In recent years the Departments of State and Justice have 
led an effort to modernize U.S. bilateral extradition treaties 
to better combat international criminal activity, such as drug 
trafficking, terrorism and money laundering. The United States 
is a party to approximately 100 bilateral extradition treaties. 
According to the Justice Department, during 1995 131 
individuals were extradited to the United States and 79 
individuals were extradited from the United States.
    The increase an international crime also has prompted the 
U.S. government to become a party to several multilateral 
international conventions which, although not themselves 
extradition treaties, deal with international law enforcement 
and provide that the offenses which they cover shall be 
extraditable offenses in any extradition treaty between the 
parties. These include: the Convention for the Suppression of 
Unlawful Seizure of Aircraft (Hague), art. 8; the Convention to 
Discourage Acts of Violence Against Civil Aviation (Montreal), 
art. 8; the Protocol Amending the Single Convention on Narcotic 
Drugs of 1961, art. 14 amending art. 36(2)(b)(I) of the Single 
Convention; the Convention to Prevent and Punish Acts of 
Terrorism Taking the Form of Crimes Against Persons and Related 
Extortion that are of International Significance (Organization 
of American States), art. 3; the Convention on the Prevention 
and Punishment of Crimes against Internationally Protected 
Persons, including Diplomatic Agents, art. 8; the International 
Convention against the Taking of Hostages, art. 10; the 
Convention on the Physical Protection of Nuclear Materials, 
art. 11; and the United Nations Convention against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances (Vienna). 
These multilateral international agreements are incorporated by 
reference in the United States' bilateral extradition treaties.

                              III. Summary

                               a. general

    An extradition treaty is an international agreement in 
which the Requested State agrees, at the request of the 
Requesting State and under specified conditions, to turn over 
persons who are within its jurisdiction and who are charged 
with crimes against, or are fugitives from, the Requesting 
State. Extradition treaties can be bilateral or multilateral, 
though until recently the United States showed little interest 
in negotiating multilateral agreements dealing with 
extradition.
    The contents of recent treaties follow a standard format. 
Article 1 sets forth the obligation of contracting states to 
extradite to each other persons charged by the authorities of 
the Requesting State with, or convicted of, an extraditable 
offense. Article 2, sometimes referred to as a dual criminality 
clause, defines extraditable offenses as offenses punishable in 
both contracting states by prison terms of more than one year. 
Attempts or conspiracies to commit an extraditable offense are 
themselves extraditable. Several of the treaties provide that 
neither party shall be required to extradite its own nationals. 
The treaties carve out an exception to extraditable crimes for 
political offenses. The trend in modern extradition treaties is 
to narrow the political offense exceptions.
    The treaties include a clause allowing the Requested State 
to refuse extradition in cases where the offense is punishable 
by death in the Requesting State, unless the Requesting State 
provides assurances satisfactory to the Requested State that 
the individual sought will not be executed.
    In addition to these substantive provisions, the treaties 
also contain standard procedural provisions. These specify the 
kinds of information that must be submitted with an extradition 
request, the language in which documents are to be submitted, 
the procedures under which documents submitted are to be 
received and admitted into evidence in the Requested State, the 
procedures under which individuals shall be surrendered and 
returned to the Requesting State, and other related matters.

                          b. major provisions

1. Extraditable offenses: The dual criminality clause

    Article 2 contains a standard definition of what 
constitutes an extraditable offense: an offense is extraditable 
if it is punishable under the laws of both parties by a prison 
term of at least one year. Attempts and conspiracies to commit 
such offenses, and participation in the commission of such 
offenses, are also extraditable. If the extradition request 
involves a fugitive, it shall be granted only if the remaining 
sentence to be served is more than six months.
    The dual criminality clause means, for example, that an 
offense is not extraditable if in the United States it 
constitutes a crime punishable by imprisonment of more than one 
year, but it is not a crime in the treaty partner or is a crime 
punishable by a prison term of less than one year. In earlier 
extradition treaties the definition of extraditable offenses 
consisted of a list of specific categories of crimes. This 
categorizing of crimes has resulted in problems when a specific 
crime, for example drug dealing, is not on the list, and is 
therefore not extraditable. The result has been that as 
additional offenses become punishable under the laws of both 
treaty partners the extradition treaties between them need to 
be renegotiated or supplemented. A dual criminality clause 
obviates the need to renegotiate or supplement a treaty when it 
becomes necessary to broaden the definition of extraditable 
offenses.

2. Extraterritorial offenses

    In order to extradite individuals charged with 
extraterritorial crimes (offenses committed outside the 
territory of the Requesting State) such as international drug 
traffickers and terrorists, provision must be made in 
extradition treaties. The Switzerland Treaty states that the 
Requested State shall grant extradition for an offense 
committed outside the Requesting State's territory if the 
Requested State's laws provide that an offense committed 
outside its territory is punishable in similar circumstances 
(art. 1(2)). Even if the Requested State does not punish 
offenses committed outside its territory in similar 
circumstances, the Switzerland treaty requires the Requested 
State to grant extradition in the case of an extraterritorial 
crime if either the fugitive or the victim is a national of the 
Requesting State (art. 1(2b)).
    In the proposed treaty an obligation to extradite depends 
mostly on whether the Requested State also punishes offenses 
outside its territory ``in similar circumstances.'' This, in 
effect, appears to be a dual criminality clause applied to 
extraterritorial offenses. The phrase ``in similar 
circumstances'' is undefined in each of the treaties that have 
such a requirement and in the Letters of Submittal from the 
Department of State to the President. The phrase appears to be 
sufficiently vague to give a reluctant Requested State ``wiggle 
room'' to avoid its possible obligation to extradite 
individuals for crimes committed outside its territory.

3. Political offense exception

    In recent years the United States has been promoting a 
restrictive view of the political offense exception in 
furtherance of its campaign against terrorism, drug 
trafficking, and money laundering. The political offense 
exception in the Switzerland Treaty is a broader provision than 
is contained in other extradition treaties.
    Generally, the standard offense not considered political--a 
criminal attack on a head of state or members of his family is 
included in this provision. The Switzerland Treaty does not 
contain exclude this offense. The exclusion of certain violent 
crimes (i.e. murder, kidnapping, and others) from the political 
offense exception has become standard in many U.S. extradition 
treaties, including this one, reflecting the concern of the 
United States government and certain other governments with 
international terrorism.
    The exclusion from the political offense exception for 
crimes covered by multilateral international agreements, and 
the obligation to extradite for such crimes or submit the case 
to prosecution by the Requested State, is now a standard 
exclusion and is contained in the proposed treaty. The 
incorporation by reference of these multilateral agreements is 
intended to assure that the offenses with which they deal shall 
be extraditable under an extradition treaty. But, extradition 
for such offenses is not guaranteed. A Requested State has the 
option either to extradite or to submit the case to its 
competent authorities for prosecution. For example, a Requested 
State could refuse to extradite and instead declare that it 
will itself prosecute the offender. While the United States is 
a party to all the multilateral agreements listed in the 
introduction, Switzerland has been less inclined to participate 
in such agreements. For example, as of January 1, 1995, 
Switzerland was not a party to the 1972 Protocol Amending the 
Single Convention on Narcotic Drugs of 1961, nor to the United 
Nations Convention against Illicit Traffic in Narcotic Drugs 
and Psychotropic Substances.\1\
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    \1\ Department of State, ``Treaties in Force on January 1, 1995,'' 
391.
---------------------------------------------------------------------------
    The Switzerland Treaty is distinguished primarily for 
granting a Requested State discretion to deny extradition for 
violations of ``currency policy, trade policy, or economic 
policy,'' or acts ``intended exclusively to reduce taxes or 
duties'' (art. 3(3)). According to the Secretary of State's 
Letter of Submittal, this provision was included in the treaty 
at Swiss behest because Swiss law for the most part prohibits 
extradition for purely fiscal or tax offenses.\2\ The Letter of 
Submittal also states, in what appears to be an expression of 
hope, that ``[T]his provision would not be used to shield from 
extradition underlying criminal conduct, such as fraud, 
embezzlement, or falsification of public documents, if that 
conduct is otherwise extraditable.'' No similar statement 
appears in the treaty itself.
---------------------------------------------------------------------------
    \2\ Letter of Submittal dated May 1, 1995, from Secretary of State 
Warren Christopher to President Clinton.
---------------------------------------------------------------------------

4. The death penalty exception

    The United States and other countries appear to have 
different views on capital punishment. Under the proposed 
treaties, the Requested State may refuse extradition for an 
offense punishable by the death penalty in the Requesting State 
if the same offense is not punishable by the death penalty in 
the Requested State, unless the Requesting State gives 
assurances satisfactory to the Requested State that the death 
penalty will not be imposed or carried out.

5. The extradition of nationals

    The U.S. does not object to extraditing its own nationals 
and has sought to negotiate treaties without nationality 
restrictions. Many countries, however, refuse to extradite 
their own nationals. U.S. extradition treaties take varying 
positions on the nationality issue.
    The Switzerland Treaty provides that the Requested State 
may not decline to extradite its own nationals unless it has 
jurisdiction to prosecute them for the acts for which 
extradition is sought (art. 8). For example, if a Swiss 
national commits a murder in the United States and then flees 
to Switzerland, he would be extraditable by the United States 
under the treaty despite his Swiss nationality unless 
Switzerland has jurisdiction to prosecute its nationals for 
murders committed outside its treaty.

6. Retroactivity

    The proposed treaty states that it shall apply to offenses 
committed before as well as after it enters into force (art. 
22). These retroactivity provisions do not violate the 
Constitution's prohibition against the enactment of ex post 
facto laws which applies only to enactments making criminal 
acts that were innocent when committed, not to the extradition 
of a defendant for acts that were criminal when committed but 
for which no extradition agreement existed at the time.

7. The rule of speciality

    The rule of speciality (or specialty), which prohibits a 
Requesting State from trying an extradited individual for an 
offense other than the one for which he was extradited, is a 
standard provision included in U.S. bilateral extradition 
treaties, including the six under consideration. The 
Switzerland Treaty (art. 13) contains exceptions to the rule of 
speciality that are designed to allow a Requesting State some 
latitude in prosecuting offenders for crimes other than those 
for which they had been specifically extradited.

8. Lapse of time

    The Switzerland Treaty has no provision denying extradition 
if barred by the statute of limitations of either the 
Requesting or Requested State.

                  IV. Entry Into Force and Termination

                          a. entry into force

    This Treaty shall enter into force 180 days after the 
exchange of instruments of ratification.

                             b. termination

    This Treaty may be terminated by either Party five years 
from the date of entry into force, after six months notice by a 
Party that it intends to terminate the Treaty.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed treaty on Wednesday, July 17, 1996. The hearing 
was chaired by Senator Helms. The Committee considered the 
proposed treaty on July 24, 1996, and ordered the proposed 
treaty favorably reported with one proviso by voice vote, with 
the recommendation that the Senate give its advice and consent 
to the ratification of the proposed treaty.

                         VI. Committee Comments

    The Committee on Foreign Relations recommended favorably 
the proposed treaty. The Committee believes that the proposed 
treaty is in the interest of the United States and urges the 
Senate to act promptly to give its advice and consent to 
ratification. In 1996 and the years ahead, U.S. law enforcement 
officers increasingly will be engaged in criminal 
investigations that traverse international borders. Certainly, 
sovereign relationships have always been important to 
prosecution of suspected criminals. The first recorded 
extradition treaty dates as far back as 1280 B.C. under Ramses 
II, Pharoah of Egypt. The United States entered into its first 
extradition treaty in 1794 with Great Britain. Like these early 
treaties, the basic premise of the treaties is to facilitate, 
under specified conditions, the transfer of persons who are 
within the jurisdiction of one nation, and who are charged with 
crimes against, or are fugitives from, the nation requesting 
extradition. Despite the long history of such bilateral 
treaties, the Committee believes that these treaties are more 
essential than ever to U.S. efforts to bring suspected 
criminals to justice.
    In 1995, 131 persons were extradited to the U.S. for 
prosecution for crimes committed in the U.S., and the U.S. 
extradited 79 individuals to other countries for prosecution. 
After the Senate ratified an extradition treaty with Jordan in 
1995, the U.S. Attorney General was able to take into custody 
an alleged participant in the bombing of the World Trade 
Center. His prosecution would not be possible without an 
extradition treaty. Crimes such as terrorism, transshipment of 
drugs by international cartels, and international banking fraud 
are but some of the international crimes that pose serious 
problems to U.S. law enforcement efforts. The Committee 
believes that modern extradition treaties provide an important 
law enforcement tool for combating such crimes and will advance 
the interests of the United States.
    The proposed resolution of ratification includes a proviso 
that reaffirms that ratification of this treaty does not 
require or authorize legislation that is prohibited by the 
Constitution of the United States. Bilateral extradition 
treaties rely on relationships between sovereign countries with 
unique legal systems. In as much as U.S. law is based on the 
Constitution, this treaty may not require legislation 
prohibited by the Constitution.

                  VII. Explanation of Proposed Treaty

    The following is the Technical Analysis of the Extradition 
Treaty submitted to the Committee on Foreign Relations by the 
Departments of State and Justice prior to the Committee hearing 
to consider pending extradition treaties.

technical analysis of the extradition treaty between the united states 
                       of america and switzerland

    On November 11, 1990, the United States signed a treaty on 
extradition with the Swiss Confederation (``the Treaty''). In 
recent years, the United States has signed similar treaties 
with many other countries as part of an ongoing effort to 
modernize our law enforcement relations. The Treaty is intended 
to replace the extradition treaty currently in force between 
the United States and Switzerland \3\ and the two supplementary 
extradition conventions to that treaty.\4\
---------------------------------------------------------------------------
    \3\ May 14, 1900, 31 Stat. 1928, T.S. 354, 11 Bevans 904.
    \4\ Jan. 10, 1935, 49 Stat. 3192, T.S. 889, 11 Bevans 924; Jan. 31, 
1940, 55 Stat. 1140, T.S. 969, 11 Bevans 938.
---------------------------------------------------------------------------
    It is anticipated that the Treaty will be implemented in 
the United States pursuant to the procedural framework provided 
by Title 18, United States Code, Section 3184 et seq. No new 
implementing legislation will be needed. Switzerland has its 
own internal extradition legislation \5\ that will apply to 
United States requests under the Treaty.
---------------------------------------------------------------------------
    \5\ See Swiss Federal Act on International Mutual Assistance in 
Criminal Matters of March 20, 1981 (``I.M.A.C.''). The key sections of 
Swiss law that are germane to the interpretation and implementation of 
the Treaty are discussed in more detail in this technical analysis.
---------------------------------------------------------------------------
    The following technical analysis of the Treaty was prepared 
by the United States delegation that conducted the 
negotiations.

Article 1--Obligation to extradite

    This article, like the first article in every recent United 
States extradition treaty, formally obligates each Contracting 
Party to extradite to the other pursuant to the provisions of 
the Treaty persons charged with or found guilty of an 
extraditable offense, or subject to a detention order in the 
Requesting State. The term ``found guilty'' was used instead of 
``convicted'' because in Switzerland, a person is not 
considered convicted until a sentence has been imposed, whereas 
in the United States, a sentence is ordinarily not imposed on a 
convicted person until after a presentence report has been 
prepared and reviewed. The negotiators intended to make it 
clear that the Treaty applies to persons who have been adjudged 
guilty but flee prior to sentencing.\6\
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    \6\ See Stanbrook and Stanbrook, ``Extradition: The Law and 
Practice'' 25-26 (1979).
---------------------------------------------------------------------------
    Paragraph 2 deals with the fact that many federal crimes 
involved acts committed wholly outside of United States 
territory. Our jurisprudence recognizes the jurisdiction of our 
courts to hear criminal cases involving offenses committed 
outside of the United States if the crime was intended to, or 
did, have effects in this country, or if the legislative 
history of the statute shows clear Congressional intent to 
assert such jurisdiction.\7\ Therefore, paragraph 2(a) requires 
the extradition of persons sought for offenses which took place 
outside the territory of the Requesting State if the Requested 
State would possess extraterritorial jurisdiction in similar 
circumstances. There are similar provisions in many recent 
United States extradition treaties.\8\ This provision will 
greatly improve the ability of the United States to obtain 
extradition for serious crimes such as narcotics trafficking 
and terrorism.
---------------------------------------------------------------------------
    \7\ Restatement (Third) of the Foreign Relations of Law of the 
United States Sec. 402 (1987); Blakesley, ``United States Jurisdiction 
over Extraterritorial Crime,'' 73 J. Crim. L. & Criminology 1109 
(1982).
    \8\ See, e.g., U.S.-Sweden Supplementary Extradition Convention, 
Mar. 14, 1983, art. IV, T.I.A.S. No. 10812; U.S.-Netherlands 
Extradition Treaty, June 24, 1980, art. 2(3), T.I.A.S. No. 10733; U.S.-
Jamaica Extradition Treaty, June 14, 1983, art. I(2), T.I.A.S. No.--; 
U.S.-Thailand Extradition Treaty, Dec. 14, 1983, art. 1(2), T.I.A.S. 
No. --.
---------------------------------------------------------------------------
    Paragraph 2(b) deals with two other circumstances in which 
the Requested State must surrender offenders sought for 
extraditable offenses which occurred outside of the territory 
of the Requesting State. The first portion of paragraph 2(b) 
provides for extradition of a person wanted for an 
extraterritorial offense if the offender is a national of the 
Requesting State. This provision is especially important to 
Switzerland, where the courts have jurisdiction to prosecute 
Swiss citizens for offenses committed outside of Swiss 
territory.\9\ A similar provision is found in many recent 
United States extradition treaties.\10\
---------------------------------------------------------------------------
    \9\ See STGB, C.P. COD. PEN., Swiss Federal Criminal Code, art. 6.
    \10\ See, e.g., U.S.-Sweden Supplementary Convention on 
Extradition, Mar. 14, 1983, art. IV(1)(b), T.I.A.S. No. 10812; U.S.-
Netherlands Extradition Treaty, June 24, 1980, art. 2(3), T.I.A.S. No. 
10733; U.S.-Mexico Extradition Treaty, May 4, 1978, art. 1(2)9b), 31 
U.S.T. 5059, T.I.A.S. No. 9656; U.S.-Italy Extradition Treaty, Oct. 13, 
1983, art. III, T.I.A.S. No. 10837; U.S.-Japan Extradition Treaty, Mar. 
3, 1978, art. VI(1), 31 U.S.T. 892, T.I.A.S. No. 9625, 1203 U.N.T.S. 
225.
---------------------------------------------------------------------------
    The second portion of paragraph 2(b) provides for 
extradition of a person wanted for an extraterritorial offense 
if the offense was committed against a national of the 
Requesting State. The clause was requested by the Swiss because 
Swiss law provides for jurisdiction over crimes committed 
against Swiss nationals outside of Switzerland.\11\ This clause 
is unusual, and, in fact, none of the other United States 
extradition treaties contains similar language.
---------------------------------------------------------------------------
    \11\ See STGB, C.P., COD. PEN., Swiss Federal Criminal Code, art. 
5. It is not anticipated that this clause will be invoked often, for 
Switzerland rarely seeks to exercise authority under this statute.
---------------------------------------------------------------------------
    The United States has traditionally opposed such passive 
personality jurisdiction in most cases because if may unfairly 
expose Americans to foreign criminal liability for actions 
which are lawful where they take place, expose them to double 
jeopardy, constitute unfair surprise as to the possibility of 
prosecution and the maximum punishment in the country of the 
victim's nationality, or conflict with other, more secure bases 
of jurisdiction such as territoriality (the place of the 
offense).
    The Swiss government specifically requested this provision 
in the Treaty. Under the unique circumstances set forth by the 
Swiss, the United States decided that the provision is 
acceptable without compromising United States interests. First, 
Swiss law permits prosecution based on passive personality only 
when an offense is criminal under the laws of the country where 
an activity takes place and only permits punishment to the 
extent authorized by the law of the territorial state. This 
addresses the fairness and unfair surprise concerns. Second, 
the Treaty precludes transfers for acts for which a person was 
already been convicted or acquitted (``non bis in idem''), and 
Swiss law does not permit duplicative prosecutions based upon 
passive personality. This addresses the double jeopardy 
concern. Third, under the Treaty, the United States may and 
will deny extradition if we have criminal jurisdiction over the 
offender, or decide to honor the extradition request of another 
country based upon such factors as the nationality of the 
offender or the site of the crime. This addresses the concern 
that passive personality is less broadly acceptable basis of 
jurisdiction that territoriality or nationality. Thus, in 
accepting this provision, the United States government does not 
intend it to represent a shift in the traditional United States 
antipathy to such clauses. We have informed the Swiss 
government of the basis for our acceptance of this provision, 
and our anticipation that it will be rarely invoked.

Article 2--Extraditable offenses

    This article contains the basic guidelines for determining 
what are extraditable offenses. The Treaty, like the recent 
United States extradition treaties with Jamaica, Italy, 
Ireland, Thailand, Sweden (Supplementary Convention), and Costa 
Rica, does not list the offenses for which extradition may be 
granted. Instead, paragraph 1 permits extradition for any 
offense punishable under the laws of both Contracting Parties 
by deprivation of liberty (i.e., imprisonment or other form of 
detention) for more than one year or by a more severe penalty 
such as capital punishment. Defining extraditable offenses in 
this manner obviates the need to renegotiate the Treaty or 
supplement it if both Contracting Parties pass laws dealing 
with a new type of criminal activity or if the list 
inadventently fails to cover an important type of criminal 
activity punishable by both Contracting Parties.
    In order to ensure that extradition is not requested for 
minor offenses, paragraph 1 requires that if the person has 
already been sentenced, the person must have at least six 
months of that sentence still to serve. Provisions of this kind 
are not preferred,\12\ but they do appear in some United States 
extradition treaties.\13\
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    \12\ For example, recent United States extradition treaties with 
Australia, Canada, Jamaica, New Zealand, and the United Kingdom contain 
no such requirement.
    \13\ See, e.g., U.S.-Italy Extradition Treaty, Oct. 13, 1983, art. 
II(1), T.I.A.S. No. 10837.
---------------------------------------------------------------------------
    Paragraph 2 reflects the intention of both Contracting 
Parties to interpret the principles of this article broadly. 
Judges in foreign courts are often confused by the fact that 
many United States federal statutes require proof of certain 
elements (such as use of the mails or interstate 
transportation) solely to establish jurisdiction in United 
States federal courts. Because these foreign judges know of no 
similar requirement in their own criminal law, they 
occasionally have denied the extradition of fugitives sought by 
the United States on federal charges on this basis. This 
paragraph requires that such elements he disregarded in 
applying the dual criminality principle. For example, Swiss 
authorities must treat United States mail fraud charges \14\ in 
the same manner as fraud charges under state laws and must view 
the federal crime of interstate transportation of stolen 
property \15\ in the same manner as unlawful possession of 
stolen property. This paragraph also requires a Requested State 
to disregard differences in the categorization of the offense 
in determining whether dual criminality exists and to overlook 
mere differences in the terminology used to define the offense 
under the laws of each Contracting Party. A similar provision 
is contained in all recent United States extradition treaties.
---------------------------------------------------------------------------
    \14\ See 18 U.S.C. Sec. 1341.
    \15\ See 18 U.S.C. Sec. 2314.
---------------------------------------------------------------------------
    Paragraph 3 follows the pattern of recent extradition 
treaties of providing that extradition should also be granted 
for attempting to commit, or otherwise participating in, an 
extraditable offense, and for conspiring to commit an offense 
if the underlying criminal activity would also be a violation 
of law. Conspiracy charges are frequently used in United States 
criminal cases, particularly those involving complex 
transnational criminal activity, so it is especially important 
that the treaty be clear on this point. Switzerland has no 
general conspiracy statute like Title 18, United States Code, 
Section 371, so paragraph 3 makes it clear that conspiracy is 
an extraditable crime if the underlying criminal activity 
passes the dual criminality test of paragraph 1 (i.e., whenever 
the offender conspired to commit an act punishable in both the 
Requesting and Requested State by deprivation of liberty for 
more than one year or a more severe penalty). It also makes 
extraditable acts in preparation of homicide, aggravated 
assault, robbery, arson, hostage-taking and kidnapping under 
the laws of Switzerland.\16\ Thus, most Swiss and United States 
inchoate crimes and accessorial conduct will be covered by the 
Treaty.
---------------------------------------------------------------------------
    \16\ See STGB, C.P., COD. PEN., Swiss Federal Criminal Code, art. 
260 bis.
---------------------------------------------------------------------------
    Paragraph 4 states that when extradition has been granted 
for an extraditable offense, it shall also be granted for any 
other offense punishable by the laws of both Contracting 
Parties regardless of the requirement as to length of sentence. 
For example, if Switzerland agrees to extradite to the United 
States a fugitive wanted for prosecution on a felony charge, 
the United States will also be permitted to obtain extradition 
for any misdemeanor offenses charged, as long as those 
misdemeanors would also be recognized as criminal offenses in 
Switzerland. Thus, the Treaty incorporates recent United States 
extradition practice by permitting extradition for misdemeanors 
committed by a fugitive when the fugitive's extradition is 
granted for a more serious extradition offense. This practice 
is generally desirable from the standpoint of both the fugitive 
and the prosecuting country in that it permits all charges 
against the fugitive to be disposed of more quickly, thereby 
facilitating trials while evidence is still fresh and 
permitting the possibility of concurrent sentences. Similar 
provisions are found in recent extradition treaties with 
Australia, Ireland, Italy, and Costa Rica.
    The Treaty, like all of our recently negotiated extradition 
treaties, makes the kidnapping of one's own child in violation 
of local law (``parental child abduction'') an extraditable 
offense, provided the conditions of the Treaty, including dual 
criminality, are met. Thus, under the Treaty, there will be the 
possibility of extradition requests being made while child 
custody is being addressed under civil or domestic relations 
procedures, including the Convention on the Civil Aspects of 
International Child Abduction, done at the Hague October 25, 
1980, which is in force for both the United States and 
Switzerland (``Hague Convention'').
    The policy of the United States government, as reflected in 
the sense of Congress regarding the 1993 International Parental 
Kidnapping Crime Act which created the federal offense, is that 
Hague Convention procedures ``in circumstances in which they 
are applicable, should be the option of first choice for a 
parent who seeks the return of a child.'' President Clinton 
reiterated this view in his signing statement in connection 
with the law. Consequently, although the federal offense was 
intended to serve as a basis for international extradition, 
prosecutors must remain aware that extradition procedures do 
not necessarily result in the return of the child. Given 
concerns for the welfare of an abducted child, it is essential 
that the prosecutor and the left-behind parent consider 
carefully the impact of a criminal prosecution on the welfare 
of an abducted child. In some cases, it will be desirable to 
delay extradition proceedings until after the child has been 
returned to the appropriate parent or custodian or to the 
child's place of habitual residence.
    In consultations in connection with the Treaty, the 
Contracting Parties concurred that civil measures or 
proceedings, including Hague Convention proceedings, are the 
preferred means to accomplish the return of a child following a 
parental child abduction. In the consultations, the delegations 
did not rule out criminal prosecutions if the civil proceedings 
were unsuccessful or in other appropriate cases. In addition, 
the consultations reflected that both Contracting Parties were 
sensitive to the fact that prior to making any extradition 
request, and more particularly in these cases, efforts should 
be made to ensure that the request is backed by a legitimate 
law enforcement interest in the prosecution of the case.

Article 3--Political, fiscal, and military offenses

    Paragraph 1 prohibits extradition if the act for which 
extradition is requested constitutes a political offense. This 
is similar to political offense provisions in many modern 
United States extradition treaties.
    Paragraph 1 also provides that the Requested State shall 
deny extradition if the request was politically motivated.\17\ 
In the United States the longstanding law and practice has been 
that the Secretary of State alone has the discretion to 
determine whether an extradition request is based on improper 
political motivation.\18\
---------------------------------------------------------------------------
    \17\ Similar provisions appear in many United States extradition 
treaties. See, e.g., U.S.-Jamaica Extradition Treaty, June 14, 1983, 
art. III(3), T.I.A.S. No.--; U.S.-Netherlands Extradition Treaty, June 
24, 1980, art. 4, T.I.A.S. No. 10733; U.S.-Ireland Extradition Treaty, 
July 13, 1983, art. IV(c), T.I.A.S. No. 10813; U.S.-Spain Extradition 
Treaty, May 29, 1970, art. 5(4), 22 U.S.T. 737, T.I.A.S. No. 7136, 796 
UNTS 245.
    \18\ See Eain v. Wilkes, 641 F.2d 504, 513-18 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotas v. Roche. 740 F. Supp. 904 (D. 
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
    Paragraph 2 states that the political offense exception 
shall not apply to offenses included in a multilateral treaty, 
convention, or agreement to which both Switzerland and the 
United States are parties and which require the parties to 
either extradite the person sought or submit the matter for 
prosecution. The conventions to which this clause would apply 
at present include the Convention on Offenses and Certain Other 
Acts Committed on Board Aircraft; \19\ the Convention on the 
Suppression of Unlawful Seizures of Aircraft (Hijacking),\20\ 
the Convention for the Suppression of Unlawful Acts Against the 
Safety of Civil Aviation (Sabotage); \21\ the Convention on the 
Prevention and Punishment of Crimes Against Internationally 
Protected Persons, Including Diplomatic Agents; \22\ and the 
International Convention Against the Taking of Hostages.\23\ In 
addition, Switzerland is expected to ratify the United Nations 
Convention Against the Illicit Traffic in Narcotic Drugs and 
Psychotropic Substances \24\ in the near future. Both the 
United States and Switzerland are parties to the Single 
Convention on Narcotic Drugs \25\ and the Amending Protocol to 
the Single Convention; \26\ this provision of the Treaty would 
pay to those conventions.
---------------------------------------------------------------------------
    \19\ Sept. 14, 1963, 20 U.S.T. 2941, T.I.A.S. No. 6768, 704 
U.N.T.S. 219.
    \20\ Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192.
    \21\ Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570.
    \22\ Dec. 14, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532, 1035 
U.N.T.S. 167.
    \23\ Dec. 17, 1979, T.I.A.S. No. 11081.
    \24\ Dec. 20, 1988, T.I.A.S. No.--.
    \25\ Mar. 30, 1961, 18 U.S.T. 1407, T.I.A.S. No. 6298, 520 U.N.T.S. 
204.
    \26\ Mar. 25, 1972, 26 U.S.T. 1439, T.I.A.S. No. 8118, 976 U.N.T.S. 
3.
---------------------------------------------------------------------------
    Paragraphs 3 (a) and (b) permit the Requested State to deny 
extradition for acts that are exclusively violations of 
currency policy, trade policy, or economic policy, or are 
intended exclusively to reduce taxes or duties. These 
provisions were included in the Treaty because Swiss law 
prohibits extradition for purely ``fiscal'' or tax 
offenses.\27\ However, the Swiss delegation stated that 
criminal conduct would not be shielded from extradition under 
these provisions to the extent that the conduct is prohibited 
by conventional penal concepts. For example, fraud and 
embezzlement are crimes which may have economic motives and 
effects but are clearly extraditable offenses under the Treaty. 
Certain violations of antitrust, environmental, or tax laws may 
be interpreted by Switzerland to fall within this category of 
non-extraditable offenses. Nonetheless, the underlying conduct 
prohibited by such laws may be accompanied by other offenses--
for example, falsification of public documents in the course of 
concealing an environmental crime--and extradition will remain 
available for those other offenses.
---------------------------------------------------------------------------
    \27\ I.M.A.C. article 3(3) states: ``A request shall not be granted 
if the subject of the proceeding is an offense which appears to be 
aimed at reducing fiscal duties or taxes or which violates regulations 
concerning currency, trade, or economic policy. *  *  *'' I.M.A.C. art. 
3(3).
---------------------------------------------------------------------------
    Paragraph 3(c) provides that extradition may be denied by 
the Requested State if the request relates to a matter that 
constitutes an offense only under military law.\28\
---------------------------------------------------------------------------
    \28\ An example of such a crime is desertion. See ``Matter of the 
Extradition of Suarez-Mason,'' 694 F. Supp. 676, 703 (N.D. Cal. 1988).
---------------------------------------------------------------------------

Article 4--Non bis in idem

    This article will permit extradition in situations in which 
the fugitive is charged with different offenses in each 
Contracting Party arising out of the same basic transaction.
    Paragraph 1, which prohibits extradition if the offender 
has been convicted or acquitted in the Requested State for the 
same acts for which extradition is requested, is similar to 
language found in many United States extradition treaties.
    Paragraph 2 follows most modern United States extradition 
treaties in giving the Requested State the option of 
instituting proceedings regarding the same acts against the 
person for whom extradition is sought, in the event it has 
jurisdiction to do so. Alternatively, it permits the Requested 
State to simply extradite the person to the Requesting State.
    Paragraph 3 makes it clear that neither Contracting Party 
may refuse to extradite an offender to the other on the ground 
that the Requested State's authorities declined to prosecute 
the offender, or instituted criminal proceedings against the 
offender and thereafter elected to discontinue the proceedings. 
This provision was included because a decision of the Requested 
State to forego prosecution, or to drop charges already filed, 
may be the result of a failure to obtain sufficient evidence or 
witnesses for trial, whereas the prosecution in the Requesting 
State may not suffer from the same impediments. This provision 
should enhance the ability to extradite to the jurisdiction 
with the better chance of a successful prosecution.
    Overall, this article will permit extradition to or from 
the United States in situations in which the fugitive is 
charged with different offenses by the Contracting Parties for 
different activities arising from the same course of conduct. 
For example, a person in the United States who prints 
counterfeit Swiss currency and uses it in an attempt to defraud 
other persons located in the United States could be prosecuted 
in the United States for fraud and, if not prosecuted in the 
United States for counterfeiting Swiss currency, could be 
extradited to Switzerland for prosecution for counterfeiting.

Article 5--Lapse of time

    This article states that extradition shall not be granted 
when the prosecution or the enforcement of the penalty or 
sanction has become barred by a lapse of time according to the 
law of the Requesting State. Similar provisions appear in 
several United States extradition treaties. The reference to 
``enforcement of the penalty or sanction'' reflects the fact 
that Switzerland, like many civil law countries, has a statute 
of limitations relating to such matters, in addition to a 
statute of limitation on prosecutions.
    In addition, this clause ensures that a court in the 
Requested State will not apply the Requested State's statute of 
limitations under the erroneous belief that it should do so in 
order to determine whether dual criminality exists.\29\ Such an 
analysis is wholly inappropriate, for statutes of limitations 
are designed by countries to complement their criminal laws and 
procedures. Applying a statute of limitations designed for one 
country's legal system to that of another country is likely to 
impose unfortunate and unintended restrictions on the 
Requesting State's ability to obtain extradition of persons who 
have committed serious violations of its laws. Therefore, this 
article provides that extradition must be denied only if the 
Requesting State's statute of limitations bars prosecution or 
enforcement of the sentence.
---------------------------------------------------------------------------
    \29\ Such an analysis has been rejected by a number of United 
States courts. See, e.g., Theron v. U.S. Marshal, 832 F.2d 492, 499 
(9th Cir. 1987), cert. denied, 486 U.S. 1059 (1988) (focus of dual 
criminality analysis is on the conduct that the law criminalizes, not 
the statute of limitations); see also Merino v. U.S. Marshal, 326 F.2d 
5, 12 (9th Cir. 1963) (in absence of treaty provisions, the statute of 
limitations may not be raised in extradition proceedings); Kamrin v. 
United States, 725 F.2d 1225, 1227 (9th Cir.), cert. denied, 469 U.S. 
817 (1984).
---------------------------------------------------------------------------

Article 6--Capital punishment

    This article permits the Requested State to refuse 
extradition in cases where the offense for which extradition is 
sought is punishable by death in the Requesting State, but is 
not punishable by death in the Requested State, unless the 
Requesting State provides such assurances that the Requested 
State considers sufficient that the death penalty will not be 
carried out. Switzerland insisted on this provision because 
Switzerland has abolished the death penalty,\30\ and Swiss 
extradition law prohibits extradition in cases in which the 
person sought might be executed.\31\ Similar provisions are 
found in many recent United States extradition treaties.\32\
---------------------------------------------------------------------------
    \30\ See STGB, C.P., COD. PEN., Swiss Federal Criminal Code, art. 
35.
    \31\ See I.M.A.C. art. 37(2).
    \32\ See, e.g., U.S.-Netherlands Extradition Treaty, June 24, 1980, 
art. 7, T.I.A.S. No. 10733; U.S.-Ireland Extradition Treaty, July 13, 
1983, art. 6, T.I.A.S. No. 10813.
---------------------------------------------------------------------------

Article 7--Conviction in absentia

    This article gives the Requested State the discretion to 
refuse to extradite a fugitive who has been convicted in 
absentia (i.e., one who was convicted without ever appearing in 
connection with the proceeding) in the Requesting State. The 
laws of the United States and Switzerland differ on who should 
make this decision. This clause will enable the Secretary of 
State to carry out the longstanding United States policy of 
permitting extradition in such cases only when the person 
sought will have the opportunity for a hearing on the issue of 
guilt in the Requesting State or has knowingly failed to 
protect the person's ability to have such a hearing.

Article 8--Extradition of nationals

    Paragraph 1 states that the Requested State shall not 
decline to extradite because the person sought is a national of 
the Requested State unless it has jurisdiction to prosecute 
that person for the acts for which extradition is sought. The 
United States will extradite its nationals to Switzerland in 
accordance with the established United States policy favoring 
such extraditions.\33\ However, Switzerland is prohibited by 
its law from extraditing a Swiss national without the person's 
consent.\34\ It is unlikely that Switzerland will surrender its 
nationals to the United States under the Treaty unless Swiss 
law is amended in the future.
---------------------------------------------------------------------------
    \33\ See generally Shearer, ``Extradition in International Law'' 
110-14 (1970); 6 Whiteman, ``Digest of International Law'' 871-76 
(1968). Our policy of drawing no distinction between nationals of the 
United States and nationals of other countries in extradition matters 
has been underscored by Congress in legislation. Title 18, United 
States Code, Section 3196 authorizes the Secretary of State to 
extradite United States citizens pursuant to a treaty which permits but 
does not expressly require surrender of citizens, as long as the other 
requirements of the treaty have been met. 18 U.S.C. Sec. 3196.
    \34\ See I.M.A.C. Sec. Sec. 7, 37.
---------------------------------------------------------------------------
    Paragraph 2 requires that if the Requested State refuses 
extradition solely on the basis of nationality, the Requested 
State shall submit the case to its competent authorities for 
prosecution if asked to do so by the Requesting State. Similar 
provisions are found in many recent United States extradition 
treaties.\35\
---------------------------------------------------------------------------
    \35\ See, e.g., U.S.-Costa Rica Extradition Treaty, Dec. 4, 1982, 
art. 8, T.I.A.S. No. --; U.S.-Mexico Extradition Treaty, May 4, 1978, 
art. 9(2), 31 U.S.T. 5059, T.I.A.S. No. 9656.
---------------------------------------------------------------------------

Article 9--Request for extradition

    This article, which sets out the documentary and 
evidentiary requirements for an extradition request, is similar 
to articles in the most recent United States extradition 
treaties.
    Paragraph 1 requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for the 
provisional arrest of the fugitive pursuant to article 13. 
Provisional arrest requests need not be initiated through 
diplomatic channels if the requirements of article 13 are met.
    Paragraph 2 outlines the information that must accompany 
every request for extradition under the Treaty. Paragraph 3 
describes the additional information needed when the person is 
sought for trial in the Requesting State; paragraph 4 describes 
the information needed, in addition to the requirements of 
paragraph 2, when the person sought has already been tried and 
convicted in the Requesting State.
    Most of the items listed in paragraph 2 enable the 
Requested State to determine quickly whether extradition is 
appropriate under the Treaty. For example, paragraph 2(c) calls 
for ``the texts of the laws describing the essential elements 
of the offense for which extradition is requested, the 
punishment for the offense, and the time limit on the 
prosecution or the execution of the punishment for the 
offense.'' This information would enable the Requested State to 
determine easily whether lack of dual criminality or lapse of 
time would be a valid basis for denying extradition under 
article 2 or 5.
    Paragraph 3 requires that if the fugitive has not yet been 
tried for the crime for which extradition is requested, the 
Requesting State must provide a copy of the outstanding arrest 
warrant, the formal charges, and ``a summary of the facts of 
the case, of the relevant evidence, and of the conclusions 
reached, providing a reasonable basis to believe that the 
person sought committed the offense for which extradition is 
requested. * * *'' This is consistent with fundamental 
extradition jurisprudence in the United States, under which 
this language is interpreted to require probable cause.\36\ 
During the negotiations, the Swiss delegation assured the 
United States that under Swiss law, the outstanding United 
States arrest warrant would constitute sufficient evidence to 
justify extradition. Since the procedure for preparing 
international extradition requests differs in the United States 
and Switzerland, the Treaty specifies that ``* * * in the case 
of Switzerland such a summary shall be written by a judicial 
authority and in the case of requests from the United States it 
shall be written by the prosecutor and shall include a copy of 
the charge.''
---------------------------------------------------------------------------
    \36\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Sec. 476 comment b (1987).
---------------------------------------------------------------------------
    Paragraph 4 lists the information needed to extradite a 
person found guilty of an offense in the Requesting State. This 
paragraph makes it clear that once a conviction has been 
obtained, no showing of probable cause is required. In essence, 
the fact of conviction speaks for itself, a position taken in 
recent United States court decisions, even absent a specific 
treaty provision.\37\
---------------------------------------------------------------------------
    \37\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2d Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D. Vt. 1979).
---------------------------------------------------------------------------
    Paragraph 5 states that if the person sought was found 
guilty in absentia, the documentation required for extradition 
must include both proof of conviction and the documentation 
required under paragraphs 2 and 4.

Article 10--Supplementing the request

    This article, which is similar to provisions in other 
recent United States extradition treaties,\38\ provides for the 
submission of additional evidence or information if the 
original request and supporting documentation are viewed as 
insufficient by the Requested State. This is intended to permit 
the Requesting State to have an opportunity to cure any defects 
in the request and accompanying materials found by a court in 
the Requested State.
---------------------------------------------------------------------------
    \38\ See, e.g., U.S.-Jamaica Extradition Treaty, June 14, 1983, 
art. I(2), T.I.A.S. No. --.
---------------------------------------------------------------------------

Article 11--Translation

    This article requires that all documents submitted in 
support of an extradition request be translated into the 
language of the Requested State. Swiss requests to the United 
States must be translated into English. Since Switzerland has 
several official languages, United States requests to 
Switzerland must be translated into the language spoken in the 
Swiss canton in which the fugitive's extradition hearing will 
be conducted, which will be French, German, or Italian.\39\
---------------------------------------------------------------------------
    \39\ See I.M.A.C. art. 28(5).
---------------------------------------------------------------------------

Article 12--Admissibility of documents

    This article governs the authentication procedures for 
documentation provided in extradition cases.
    Paragraph (a) states that evidence intended for use in 
extradition proceedings in Switzerland must be certified by a 
judge, magistrate or other United States official and must be 
sealed by the Secretary of State.
    Paragraph (b) states that evidence intended for use in 
extradition proceedings in the United States shall be 
admissible if it is certified by the principal diplomatic or 
consular officer of the United States resident in Switzerland. 
This provision primarily accommodates the authentication 
procedures required by United States law.\40\
---------------------------------------------------------------------------
    \40\ See 18 U.S.C. Sec. 3190.
---------------------------------------------------------------------------
    Paragraph (c) provides an alternative method for 
authenticating evidence in an extradition proceeding, by 
permitting such evidence to be admitted if it is authenticated 
in any manner accepted by the laws of the Requested State. 
Under this paragraph, relevant evidence that would normally 
satisfy the evidentiary rules of the Requested State should not 
be excluded at the extradition hearing because of an 
inadvertent error or omission in the authentication process.

Article 13--Provisional arrest

    This article describes the process by which a person in one 
Contracting Party may be arrested and detained while the formal 
extradition request is being prepared by the Requesting State.
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made either through the diplomatic 
channel or directly between the United States Department of 
Justice and the Swiss Federal Department of Justice and 
Police.\41\ Experience has shown that the ability to use such 
direct channels in emergency situations can be crucial when a 
fugitive is posed to flee a jurisdiction.
---------------------------------------------------------------------------
    \41\ It is understood that the United States Department of Justice 
and the Swiss Federal Department of Justice and Police may use the 
facilities of Interpool for such requests. See I.M.A.C. art. 44.
---------------------------------------------------------------------------
    Paragraph 2 sets forth the information that the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must take 
appropriate steps to arrest the person sought, and shall advise 
the Requesting State without delay of the result of its 
request.
    Paragraph 4 provides that the fugitive may be released from 
detention if the Requesting State does not receive the fully 
documented extradition request within 40 days of the 
provisional arrest. This period may be extended by a maximum of 
20 additional days upon request. When the United States is the 
Requesting State, documents must be received by the ``executive 
authority,'' which would include the Secretary of State or the 
United States Embassy in Bern.\42\ When Switzerland is the 
Requesting State, the documents must be received by ``the 
competent authorities,'' a term which includes the Swiss 
courts.
---------------------------------------------------------------------------
    \42\ Clark, 470 F. Supp. 976, 979.
---------------------------------------------------------------------------
    Paragraph 5 states that the person arrested may be released 
from custody if the documents are not received within the 60-
day period. However, the person may be taken into custody again 
and the extradition proceedings may be re-commenced when the 
formal request is presented at a later date.

Article 14--Decision and surrender

    This article requires that the Requested State promptly 
notify the Requesting State through diplomatic channels of its 
decision on the extradition request. If extradition is denied, 
the Requested State must provide the reasons for the denial. If 
extradition is granted, the article requires that the 
Contracting Parties agree on a time and place for surrender of 
the person. The Requesting State must remove the fugitive 
within the time prescribed by the law of the Requested State or 
the person may be discharged from custody, and the Requested 
State may subsequently refuse to extradite the person for the 
same offense. Under United States law, such surrender must 
occur within two calendar months of the finding that the 
offender is extraditable,\43\ or of the conclusion of any 
litigation challenging that finding,\44\ whichever is later. 
Under Swiss law, the surrender must take place within ten days 
of the finding that the offender is extraditable, or of the 
conclusion of any litigation challenging that finding, 
whichever is later, and that period can be extended for 30 days 
upon request.\45\
---------------------------------------------------------------------------
    \43\ 18 U.S.C. Sec. 3188.
    \44\ Jimenez v. U.S. District Court, 84 S. Ct. 14, 11, L.Ed.2d 30 
(1963) (decided by Goldberg, J., in chambers); see Liberto v. Emery, 
724 F.2d 23 (2d Cir. 1983); In re United States, 713 F.2d 105 (5th Cir. 
1983); see also Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).
    \45\ I.M.A.C. art. 61.
---------------------------------------------------------------------------

Article 15--Deferred and temporary surrender

    Occasionally, a person sought for extradition already may 
be facing prosecution or serving a sentence on other charges in 
the Requested State. This article provides a means for the 
Requested State to defer extradition in such circumstances 
until the conclusion of the proceedings against the person 
sought and the service of any punishment imposed. Similar 
provisions appear in our recent extradition treaties with the 
Bahamas and Australia.
    Paragraph (a) provides that the executive authority of the 
Requested State may defer the surrender of a person who is 
serving a sentence in the Requested State until the conclusion 
of the proceedings against that person or the full execution of 
any punishment that may or may not have been imposed.\46\
---------------------------------------------------------------------------
    \46\ Under United States law and practice, the Secretary of State 
makes this decision. See Koskotas v. Roche, 740 F. Supp. 904, 920 (D. 
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
    Paragraph (b) provides for the temporary surrender for the 
purpose of prosecution in the Requesting State of a person who 
is being prosecuted or is serving a sentence in the Requested 
State. A person temporarily transferred pursuant to the Treaty 
will be returned to the Requested State at the conclusion of 
the proceedings against that person in the Requesting State, in 
accordance with conditions to be determined by mutual agreement 
of the Contracting Parties. Such temporary surrender furthers 
the interests of justice in that it permits trial of the person 
sought while evidence and witnesses are more likely to be 
available, thereby increasing the likelihood of a successful 
prosecution. Such transfer may also be advantageous to the 
person sought in that: (1) it permits resolution of the charges 
sooner; (2) it makes possible the service of any sentence in 
the Requesting State concurrently with the sentence in the 
Requested State; and (3) it permits defense against the charges 
while favorable evidence is fresh and more likely to be 
available. Similar provisions are found in many recent 
extradition treaties.

Article 16--Rule of specialty

    The Rule of Specialty as set forth in this article is 
substantively similar to the rule as embodied in other recent 
United States extradition treaties. Paragraph 1 provides that a 
person surrendered under the Treaty may be detained, proceeded 
against, or sentenced in the Requesting State only for an 
offense for which extradition was granted, an offense 
differently denominated but based on the same facts, an offense 
committed after the person's surrender, or an offense to which 
the Requested State consents. Subparagraph 1(a) further 
provides that before giving such consent, the Requested State 
may require the Requesting State to document its request as if 
it were an ordinary request under the Treaty. The Secretary of 
State will determine whether such consent should be given by 
the United States.47
---------------------------------------------------------------------------
    \47\ See Berenguer v. Vance, 473 F. Supp. 1195 (D.D.C. 1979).
---------------------------------------------------------------------------
    Paragraph 1 also provides that a person extradited under 
the Treaty may not be extradited to a third country for any 
offense committed prior to surrender other than that for which 
extradition has been granted without the consent of the 
executive authority of the Requested State. In the case of the 
United States, the Secretary of State will decide whether such 
consent should be given.
    Paragraph 1(b) permits the detention, trial, or punishment 
of an extraditee for additional offenses, or the extradition of 
that person to a third country if the extraditee (1) leaves and 
returns to the Requesting State, or (2) does not leave the 
Requesting State within 45 days of being free to do so.
    Paragraph 2 recognizes that, under Swiss law, prosecutions 
in absentia may be required to avoid the running of the statue 
of limitations.
    Paragraph 3 reiterates the basis proposition under both 
United States and Swiss law that extradition is granted for 
specific illegal acts by the fugitive which are punishable 
under both legal systems. Thus, once extradition is granted, 
the returned fugitive may be prosecuted--without a request for 
a waiver of the Rule of Specialty--for any charge that can be 
brought under the set of facts for which extradition was 
granted, as long as the penalties for the new charges are not 
greater than the penalties for those offenses for which 
extradition was granted. Thus, no waiver of the Rule of 
Specialty is required if an offense is differently denominated 
in the requesting State than in the Requested State, but is 
based on the same facts for which extradition was granted. Only 
if the factual basis for the charges is altered or the penalty 
is increased must a request for a waiver of the Rule of 
Specialty be made.
    Paragraph 4 provides a mechanism for obtaining a waiver by 
the fugitive of the Rule of Specialty. Subparagraph 4(a) 
follows existing requirements of Swiss law for such a waiver. 
Subparagraph 4(b) follows United States law.

Article 17--Requests for extradition by several States

    This article, which follows the practice set forth in many 
recent United States extradition treaties, lists some of the 
factors that the executive authority of the Requested State 
must consider in determining to which country to surrender a 
person whose extradition has been requested by two or more 
countries.48 For the United States, the Secretary of State 
makes this decision.49
---------------------------------------------------------------------------
    \48\ See I.M.A.C. art. 40.
    \49\ See Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 
1990), aff'd, 932 F.2d 977 (11th Cir. 1991).
---------------------------------------------------------------------------

Article 18--Simplified extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings in order to expedite 
their return to the Requesting State. This article provides a 
framework for such a waiver and return. It states that when a 
fugitive consents in writing to be surrendered to the 
Requesting State and has been advised by a judicial authority 
of the right to a formal proceeding and its protections, the 
person's surrender may be granted by the Requested State 
without formal extradition proceedings. The negotiators 
anticipated that in such cases, the Requested State would have 
no need for the formal documents described in article 9 or 
further judicial or administrative proceedings of any kind.
    If the United States is the Requested State and the person 
sought elects to return voluntarily to Switzerland before the 
United States Secretary of State signs a surrender warrant, the 
process would not be deemed an ``extradition.'' Longstanding 
United States policy is that the Rule of Specialty does not 
apply to such cases. However, the second sentence of this 
article states that when Switzerland is the Requested State, 
the Rule of Specialty set forth in article 16 will apply to 
cases in which article 18 was invoked. This is in accordance 
with Swiss law.50 A similar requirement is found in other 
recent United States extradition treaties.51
---------------------------------------------------------------------------
    \50\ See I.M.A.C. art. 54.
    \51\ See, e.g., U.S.-Mexico Extradition Treaty, May 4, 1978, art. 
18, 31 U.S.T. 5059, T.I.A.S. No. 9656; U.S.-Jamaica Extradition Treaty, 
June 14, 1983, art. 15, T.I.A.S. No.--.
---------------------------------------------------------------------------

Article 19--Surrender of property

    This article provides for the seizure by the Requested 
State of all property--which might include articles, 
instruments, objects of value, documents, or other evidence--
relating to the offense, to the extent permitted by the 
Requested State's internal law. The article also provides that 
these objects shall be surrendered to the Requested State upon 
the granting of the extradition or even if extradition cannot 
be effected for any reason, including the death, disappearance, 
or escape of the fugitive. Paragraph 2 states that the 
Requested State may condition its surrender of property upon 
satisfactory assurances that the objects will be returned to 
the Requested State as soon as practicable. The obligation to 
surrender property under this provision is expressly made 
subject to due respect for the rights of third parties in such 
property.

Article 20--Transit

    Paragraph 1 gives each Contracting Party the power to 
authorize transit through its territory of persons being 
surrendered to the other Contracting Party by third countries 
and to hold such persons in custody during the period of 
transit. Transit requests may be transmitted via the diplomatic 
channel. Each request must contain a description of the person 
whose transit is being proposed, a brief statement of the facts 
of the case necessitating the surrender to the Requesting 
State, and other information as specified in paragraph 1. This 
paragraph also states that no advance authorization is needed 
if air transportation is being used and no landing was 
scheduled in the territory of the other Contracting Party.
    Paragraph 2 states that if an unscheduled landing occurs, 
the transit shall be subject to the provisions of article 
29(1). The person in transit may be kept in custody for up to 
72 hours until a request for transit is received, and, if the 
request is granted, may remain in custody thereafter until the 
transit is complete.

Article 21--Expenses

    Paragraph 1 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
transportation of the fugitive to the Requesting State and the 
translation of documents, which are to be paid by the 
Requesting State. This is consistent with Swiss and United 
States law on this subject.\52\
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    \52\ See 18 U.S.C. Sec. 3195; I.M.A.C. art. 31.
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    Paragraph 2 provides that the Requested State shall provide 
for the representation of the Requesting State in any 
proceedings arising out of the request for extradition. Thus, 
the United States will represent Switzerland in connection with 
a request from Switzerland for extradition before the courts in 
this country, and the Swiss Federal Department of Justice and 
Police will arrange for the representation of United States 
interests in connection with United States extradition requests 
to Switzerland. In the past, such reciprocal representation 
arrangements have provided the United States with high quality 
legal representation in extradition cases. This arrangement 
also ensures better coordinated and more uniform handling of 
foreign extradition requests before United States courts.

Article 22--Application

    The Treaty, like most other United States extradition 
treaties negotiated in the past two decades, expressly states 
that it applies to offenses committed before as well as after 
the date on which the Treaty enters into force.

Article 23--Effect on other treaties and laws

    This article is intended to ensure uniform procedures for 
the execution of extradition requests. It provides that 
whenever the procedures provided by the Treaty would facilitate 
the extradition provided for under any other convention or 
under the law of the Requested State, the procedures provided 
by the Treaty shall be used. Thus, the Treaty supplies the 
procedures to be used in any extradition request arising under 
the Treaty or under any of the various specialized multilateral 
treaties that may contain extradition obligations. Without this 
article, the provisions of Swiss extradition law would apply to 
United States requests arising under these multilateral 
treaties, which possibly could lead to inconsistent results.

Article 24--Consultation

    This article provides that the Contracting Parties shall 
consult, at the request of either Contracting Party, regarding 
the interpretation, application, or operation of the Treaty, 
either in general or with respect to a specific case. A similar 
provision is found in other recent United States extradition 
treaties awaiting ratification.\53\
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    \53\ See, e.g., U.S.-Jordan Extradition Treaty, March 28, 1995, 
art. 20. See, also, extradition treaties awaiting to be entered into 
force: U.S.-Belgium Extradition Treaty, Apr. 9, 1987, art. 19, T.I.A.S. 
No. --; U.S.-Philippines Extradition Treaty, Nov. 13, 1994, art. 18, 
T.I.A.S. No. --; U.S.-Hungary Extradition Treaty, Dec. 1, 1994, art. 
21, T.I.A.S. No. --.
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Article 25--Entry into force and termination

    This article contains standard treaty language providing 
for the ratification of the Treaty and the exchange of 
instruments of ratification at Washington, D.C., as soon as 
possible.
    Paragraph 2 states that the Treaty will enter into force 
180 days after the exchange of instruments of ratification.
    Paragraph 3 provides that the extradition treaty currently 
in force and the supplementary treaties of 1935 and 1940 shall 
cease to have effect upon the entry into force of the Treaty, 
except with respect to extradition requests pending when the 
Treaty enters into force.
    Paragraph 4 provides that the Treaty may be terminated by 
either contracting Party at any time after five years from the 
date of entry into force, provided that at least six months 
prior to the termination, written notice of termination was 
provided to the other Contracting Party.
    The Treaty, like all of our recently negotiated treaties, 
makes the kidnapping of one's own child in violation of local 
law (parental child kidnapping) an extraditable offense, 
provided there is dual criminality and the offense is 
punishable by imprisonment for at least one year in both 
Contracting Parties. However, both Contracting Parties are 
sensitive to the fact that prior to making any request for 
extradition, efforts should be made to ensure that the request 
is backed by a legitimate law enforcement interest in the 
prosecution of the case. Among the factors to be addressed 
would be the appropriateness of the prosecution itself and, 
particularly in cases in which the sole interest is the return 
of the child and not prosecution, the availability of civil or 
domestic relations procedures, including the Convention on the 
Civil Aspects of International Child Abduction, done at the 
Hague October 25, 1980, in force for the United States July 1, 
1988 (the Hague Convention), to which Switzerland is also a 
party. Further, prosecutors must be cognizant of the fact that 
extradition procedures do not necessarily result in the return 
of the child and must weigh carefully whether it is in the best 
interest of the child to undertake the extradition of the 
kidnapper/parent while the child is still in the custody of 
that parent. In some cases, it is desirable for extradition 
proceedings to be delayed until after the child has been 
returned to the appropriate parent or custodian.

              VIII. Text of the Resolution of Ratification

    Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of The Extradition Treaty Between the Government 
of the United States of America and the Government of the Swiss 
Confederation, signed at Washington on November 14, 1990. The 
Senate's advice and consent is subject to the following 
proviso, which shall not be included in the instrument of 
ratification to be signed by the President:

          Nothing in the Treaty requires or authorizes 
        legislation or other action by the United States of 
        America that is prohibited by the Constitution of the 
        United States as interpreted by the United States.