[Senate Executive Report 115-4]
[From the U.S. Government Publishing Office]
115th Congress } { Exec. Rept.
SENATE
2d Session } { 115-4
======================================================================
TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF SERBIA
ON EXTRADITION
_______
June 7, 2018.--Ordered to be printed
_______
Mr. Corker, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 115-1]
The Committee on Foreign Relations, to which was referred
the Treaty Between the United States of America and the
Republic of Serbia on Extradition, signed at Belgrade on August
15, 2016 (Treaty Doc. 115-1), having considered the same,
reports favorably thereon with one declaration 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 advice and consent to ratification.
CONTENTS
Page
I. Purpose..........................................................1
II. Summary and Discussion of Key Provisions.........................1
III. Entry into Force and Termination.................................2
IV. Committee Action.................................................3
V. Committee Comments...............................................3
VI. Explanation of Extradition Treaty with Serbia....................3
VII. Text of Resolution of Advice and Consent to Ratification.........9
I. Purpose
The purpose of the Extradition Treaty with the Republic of
Serbia (hereinafter ``the Treaty'') is to impose mutual
obligations to extradite fugitives at the request of a party
subject to conditions set forth in the Treaty.
II. Summary and Discussion of Key Provisions
The United States is currently a party to over 100
bilateral extradition treaties, including a treaty with the
Kingdom of Servia which was signed on October 25, 1901, and
entered into force on June 12, 1902 (hereinafter the ``1901
treaty''). The 1901 treaty applies to the Republic of Serbia as
a successor state to the former Socialist Federal Republic of
Yugoslavia.
The treaty before the Senate is designed to replace, and
thereby modernize, the century-old extradition treaty with the
Kingdom of Servia. It was signed in August 2016 and submitted
to the Senate on January 17, 2017. In general, the Treaty
follows a form used in several other bilateral extradition
treaties approved by the Senate in recent years. It contains
two important features which are not in the 1901 treaty. First,
the Treaty contains a ``dual criminality'' provision, which
requires a party to extradite a fugitive whenever the offense
is punishable under the laws of both parties by deprivation of
liberty for a maximum period of more than one year. This
provision replaces the list of offenses specifically identified
in the 1901 treaty. This more flexible provision ensures that
newly-enacted criminal offenses are covered by the Treaty,
thereby obviating the need to amend it as offenses are
criminalized by the Parties.
Second, the Treaty provides for the extradition of
nationals. Specifically, Article 3 states that ``[e]xtradition
shall not be refused based on the nationality of the person
sought.'' This contrasts with Article V of the 1901 treaty,
which does not obligate a party to extradite its own citizens
or subjects. Many countries have, historically, refused to
extradite nationals.
The Treaty contains another provision worth noting.
Consistent with U.S. policy and practice in recent years, the
Treaty narrows the political offense exception. The political
offense exception (a long-standing exception in U.S.
extradition practice) bars extradition of an individual for
offenses of a ``political'' nature. The Treaty with Serbia
retains the political offense exception in Article 4, but
provides that certain crimes shall not be considered political
offenses, including murder, serious sexual assault, kidnapping,
and offenses for which both parties have an obligation to
extradite under a multilateral agreement.
The Treaty contains a provision related to the death
penalty. Under Article 7, when extradition is sought for an
offense punishable by death in the Requesting State and is not
punishable by death in the Requested State, the Requested State
may refuse extradition unless the Requesting State provides an
assurance that the person sought for extradition will not be
executed. This provision is found in many U.S. extradition
treaties, as many treaty partners do not impose the death
penalty under their laws, and object to its application to
fugitives whom they extradite to the United States.
Finally, the terms of Article 16 Rule of Specialty clearly
bar onward extradition unless the Requested State consents to
the onward extradition or surrender.
III. Entry Into Force and Termination
Under Article 22, the Treaty enters into force upon the
exchange of the instruments of ratification. Under Article 23,
either party may terminate the treaty on written notice;
termination will be effective six months after the date of such
notice.
IV. Committee Action
The committee reviewed the Treaty at a hearing on December
13, 2017, at which representatives of the Departments of State
and Justice testified. The committee considered the Treaty on
March 20, 2018, and ordered it favorably reported by voice
vote, with the recommendation that the Senate give its advice
and consent to the ratification of the Treaty, subject to the
declaration set forth in the resolution of advice and consent
to ratification.
V. Committee Comments
The committee recommends favorably the Treaty with the
Republic of Serbia. It modernizes a treaty that is over a
century old, and provides a more flexible ``dual criminality''
provision which will incorporate a broader range of criminal
offenses than is covered under the current treaty in place with
the Republic of Serbia.
VI. Explanation of Extradition Treaty with Serbia
What follows is a technical analysis of the Treaty prepared
by the Departments of State and Justice.
TECHNICAL ANALYSIS OF THE TREATY BETWEEN THE UNITED STATES OF AMERICA
AND THE REPUBLIC OF SERBIA ON EXTRADITION
The Treaty Between the United States of America and the
Republic of Serbia on Extradition (``Treaty'') replaces an
outdated extradition treaty between the United States of
America and the Kingdom of Servia signed in 1901.
The following is an article-by-article description of the
provisions of the Treaty:
Article 1--Obligation To Extradite
Article 1 obligates each State to extradite to the other
State persons sought by the Requesting State for prosecution or
for imposition or service of a sentence for an extraditable
offense.
Article 2--Extraditable Offenses
Article 2 defines extraditable offenses. Under Article
2(1), an offense is extraditable if it is punishable under the
laws of both States by deprivation of liberty for a period of
more than one year or by a more severe penalty. This
formulation is consistent with the modern ``dual criminality''
approach. The new Treaty eliminates the requirement of the 1901
Treaty that the offense be among those listed in the Treaty.
The dual criminality formulation also obviates the need to
renegotiate or supplement the Treaty as additional offenses
become punishable under the laws of both States. It ensures
comprehensive coverage of criminal conduct for which
extradition may be sought.
Article 2(2) is designed to include within the realm of
extraditable offenses an attempt or conspiracy to commit, or
participation in the commission of, offenses described in
Article 2(1). By using the broad term ``participation,'' the
Treaty covers such offenses as aiding, abetting, counseling, or
procuring the commission of an offense, as well as being an
accessory to an offense, at whatever stage of development of
the criminal conduct and regardless of the alleged offender's
degree of involvement.
Additionally, Article 2(3) identifies a number of
situations in which an offense will be extraditable despite
potential differences in the criminal laws of both States. For
instance, an offense shall be extraditable whether or not the
laws of the Requesting and Requested States place the acts
constituting the offense within the same category of offenses
or describe the offense by the same terminology. This provision
also makes explicit that an offense is extraditable even where
the evidence provided does not support the existence of certain
facts that are merely necessary to establish U.S. federal
jurisdiction, such as evidence of interstate transportation or
use of the mails or of other facilities affecting interstate or
foreign commerce. This clarifies an important issue for the
United States in requesting extradition for certain federal
crimes. In addition, an offense involving tax fraud or tax
evasion, customs duties, or import/export controls shall be
extraditable regardless of whether the Requested State provides
for the same sort of taxes, duties, or controls.
Article 2(4) addresses issues of territorial jurisdiction.
It specifies that where the Requesting State seeks extradition
for an offense that occurred outside its territory, the
Requested State shall grant extradition if the laws of the
Requested State would provide for punishment of the
extraterritorial offense in similar circumstances. If the
Requested State's laws would not provide for punishment of the
extraterritorial offense in similar circumstances, the
Requested State nonetheless retains discretion to grant
extradition provided the other requirements of the Treaty are
met.
Article 2(5) prescribes that if extradition is granted for
an extraditable offense, it shall also be granted for any other
offense specified in the request even if the latter offense is
punishable by a maximum of one year's deprivation of liberty or
less, provided that all other requirements for extradition are
met.
Article 2(6) provides that where the extradition request is
for service of a sentence of imprisonment for an extraditable
offense, the Requested State may only grant extradition if at
least six months imprisonment remains to be served.
Article 3--Nationality
Article 3 establishes that extradition shall not be refused
based on the nationality of the person sought.
Article 4--Political and Military Offenses
Article 4 establishes an exception for political and
military offenses. 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), however, describes five categories of
offenses that shall not be considered political offenses. A
near identical list of these limitations was included in the
extradition treaties between the United States and Chile
(signed 2013), the United States and the Dominican Republic
(signed 2015), and the United States and Kosovo (signed 2016).
The list of limitations in each of these most recent treaties
is slightly broader than similar lists that appear in other
modern treaties, including those with Hungary (signed 1994),
Poland (signed 1997), the United Kingdom (signed 2003),
Bulgaria (signed 2007) and Romania (signed 2007). In addition
to offenses that involve the possession, placement, use or
threatened use of an explosive, incendiary, or destructive
device when such device is capable of endangering life or
causing substantial bodily harm or substantial property damage,
Article 4(2)(d) now also establishes that political offenses
cannot include offenses involving similarly serious biological,
chemical or radiological agents. Further, Article 4(2)(e) makes
clear that conspiracy or attempt to commit non-political
offenses, or aiding or abetting another person who commits or
attempts to commit such offenses, also shall not be considered
political offenses. This slight narrowing of extraditable
offenses to exclude political offenses aligns with a major
priority of the United States to ensure that an overbroad
definition of ``political offense'' does not impede the
extradition of terrorists.
Notwithstanding Article 4(2), Article 4(3) provides that
extradition shall not be granted if the competent authority of
the Requested State determines that the request was politically
motivated.
Under Article 4(4), the competent authority of the
Requested State may refuse extradition for offenses under
military law that are not offenses under ordinary criminal law.
Desertion would be an example of such an offense.
Article 5--Non Bis In Idem
Article 5(1) prohibits extradition in instances where a
person sought has been previously convicted, acquitted, or
discharged from proceedings with final and binding effect by
the Requested State for the offense for which extradition is
requested. Under Article 5(2), however, a person shall not be
considered to have been convicted, acquitted, or discharged in
the Requested State when the authorities of the Requested
State: (a) have decided not to prosecute the person sought for
the acts for which extradition is requested, or (b) are still
investigating or proceeding against the person sought for those
acts.
Article 6--Lapse of Time
Article 6 provides that only the laws of the Requesting
State regarding lapse of time may be considered for purposes of
deciding whether or not to grant extradition. In this regard,
the Requested State is bound by the statement of the Requesting
State that the statute of limitations has not expired.
Article 7--Death Penalty
Article 7 addresses capital punishment. When an offense for
which extradition is sought is punishable by death under the
laws of the Requesting State but not under the laws of the
Requested State, the Requested State may refuse extradition
unless the Requesting State provides assurances that: (a) the
death penalty shall not be imposed on the person sought, or (b)
the death penalty, if imposed, shall not be carried out against
the person sought. If either condition is satisfied, the
Requested State must comply with the extradition request, and
the Requesting State must abide by its assurances.
Article 8--Extradition Procedures and Required Documents
Article 8 specifies the procedures and documents required
to support a request for extradition. Article 8(1) requires all
extradition requests to be submitted through the diplomatic
channel. Among several other requirements, Article 8(3)(c)
establishes that extradition requests must be supported by
information that would provide a sufficient basis to establish
that it is probable that the person sought committed the
offense(s) for which extradition is requested. Notably, this
language is understood as equivalent to the probable cause
standard applied in U.S. criminal law and applied by U.S.
courts in determining whether to certify to the Secretary of
State that a fugitive's extradition would be lawful under the
applicable treaty and U.S. law. Article 8(6) permits the
submission of additional information to enable the Requested
State to decide on the extradition request. Article 8(7) deals
with circumstances where the Requesting State is considering
submitting particularly sensitive information to support its
request for extradition. In such a case, if the Requesting
State is not satisfied that the Requested State can adequately
protect the sensitive information, the Requesting State must
determine whether the sensitive information should be submitted
nonetheless.
Article 9--Admissibility of Documents
Article 9 sets out the procedures for the certification and
admissibility of documents in extradition proceedings.
Article 10--Translation
Article 10 requires all documents submitted by the
Requesting State under the Treaty to be accompanied by an
official translation into the language of the Requested State,
unless otherwise agreed.
Article 11--Provisional Arrest
Article 11 provides that, in cases of urgency, the
Requesting State may request the provisional arrest of
fugitives and sets forth the procedures for making such a
request pending presentation of the formal extradition request.
Article 11(2) specifies the information that must accompany a
provisional arrest request. Article 11(3) provides that the
Requesting State shall be notified without delay of the date of
a provisional arrest or the reasons why the Requested State
cannot proceed with the request. Article 11(4) permits the
release of the person provisionally arrested if the executive
authority of the Requested State does not receive the formal
extradition request and supporting documents within 60 days of
the date on which the person was provisionally arrested. For
the purposes of applying the 60-day time limitation, receipt of
the supporting documents by the embassy of the Requested State
located in the Requesting State constitutes receipt by the
executive authority of the Requested State. Article 11(5) makes
clear that the release of a person pursuant to Article 11(4)
does not prevent the person's re-arrest and extradition if the
Requested State receives the formal extradition request and
supporting documents at a later date.
Article 12--Decision and Surrender
Article 12 requires the Requested State to promptly notify
the Requesting State of its decision regarding an extradition
request. If the Requested State denies extradition, Article
12(2) requires the Requested State to explain the reasons for
denial. If the Requested State agrees to grant extradition,
Article 12(3) requires the Requested and Requesting States to
coordinate the date and place for surrendering the person
sought. Article 12(4) provides that if the person to be
surrendered is not removed from the territory of the Requested
State within the time prescribed by the Requested State's laws,
the Requested State may discharge the person sought from
custody and subsequently refuse extradition for the same
offense.
Article 13--Deferral of Extradition Proceedings and Deferred or
Temporary Surrender
Article 13 addresses deferred extradition proceedings and
deferred or temporary surrender of the person sought. Under
Article 13(1), if the person sought is being proceeded against
in the Requested State, the Requested State may defer the
extradition proceedings until its own proceedings have been
concluded. Article 13(2) addresses circumstances where
extradition proceedings have concluded and extradition has been
authorized, but the person sought is being proceeded against or
is serving a sentence in the Requested State. In such cases,
the Requested State may either defer the surrender of the
person sought or temporarily surrender the person to the
Requesting State for the purpose of prosecution. Article 13(3)
explains that if the Requested State elects to defer surrender,
it may detain the person sought until surrender. Under Article
13(4), however, if the Requested State elects to temporarily
surrender the person to the Requesting State, the Requesting
State must detain the temporarily surrendered person during
proceedings and return the person when proceedings conclude.
The person's return to the Requested State shall not require
any further extradition request or proceedings.
Article 14--Conflicting Requests
Pursuant to Article 14, if the Requested State receives
extradition requests for the same person from the Requesting
State and from any other State or States, either for the same
offense or for different offenses, the executive authority of
the Requested State shall determine to which State, if any, it
will surrender that person. Article 14 requires the Requested
State to consider several non-exclusive factors when making its
decision.
Article 15--Seizure and Surrender of Items
Article 15 provides that, subject to certain conditions,
the Requested State may seize and surrender to the Requesting
State all items that are connected with the offense for which
extradition is sought or that may be required as evidence in
the Requesting State.
Article 16--Rule of Specialty
Article 16(1) sets forth the rule of specialty, which
prohibits a person extradited under the Treaty from being
detained, tried, or punished in the Requesting State, except
where the detention, trial, or punishment: (a) is for an
offense for which extradition was granted, or for a differently
denominated offense carrying the same or lesser penalty that is
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) is for an offense committed after
that person's extradition to the Requesting State; or (c)
occurs with the consent of the competent authority of the
Requested State. If the Requested State consents to the
person's detention, trial or punishment for a different
offense, the Requested State may require the Requesting State
to submit the documentation required under Article 8.
Similarly, Article 16(2) provides that a person extradited
under the Treaty may not be the subject of onward extradition
or surrender for any offense committed prior to extradition,
unless the Requested State consents. This provision would
preclude the Republic of Serbia from transferring to a third
State or an international tribunal a fugitive that the United
States surrendered to the Republic of Serbia, unless the United
States consents. Article 16(3), however, permits the Requesting
State to detain, try, punish, extradite, or surrender the same
person if that person: (a) leaves and voluntarily returns to
the Requesting State, or (b) chooses not to leave the
Requesting State within 15 days of the day that person is free
to leave.
Article 17--Waiver and Simplified Extradition
Article 17 allows the Requesting State to expedite the
transfer of the person whose extradition is sought to the
Requesting State. If the person consents to be surrendered to
the Requesting State in writing, the Requested State may
surrender the person as expeditiously as possible. While
Serbian law provides for this consent-based expedited
surrender, it does not permit a fugitive to waive the
extradition process entirely. U.S. law and practice permit both
consent to extradition and waiver of the extradition process,
in the latter of which surrender may occur without further
judicial or executive branch proceedings and the rule of
specialty would not apply.
Article 18--Transit
Article 18 allows either State to authorize transportation
through its territory of a person being extradited or otherwise
transferred to the other State by a third State or from the
other State to a third State for the purposes of prosecution,
imposition of a sentence, or service of a sentence. It also
specifies the procedures for requesting such transit and makes
clear that a person who is being transported pursuant to this
Article may be detained during the period of transit. Under
Article 18(2), authorization is not required when the other
State only uses air transportation and no landing is scheduled
on the State's territory. Should an unscheduled landing occur,
however, the State may require submission of a formal transit
request within 96 hours.
Article 19--Representation and Expenses
Article 19 requires the Requested State to advise, assist,
appear in court on behalf of, and represent the interests of,
the Requesting State in any proceedings arising out of an
extradition request. Additionally, the Requested State must
bear all expenses incurred in that State in connection with the
extradition proceedings, except for expenses related to
translation of documents and transportation of the person
surrendered.
Article 20--Consultation
Article 20 provides that the U.S. Department of Justice and
the Ministry of Justice of the Republic of Serbia may consult
with each other directly in connection with individual cases
and in furtherance of efficient implementation of the Treaty.
Article 21--Application
Article 21 establishes that the Treaty applies to offenses
committed both before and after the date it enters into force.
However, the Executive Authority of the Requested State retains
the discretion to deny a request for extradition of its
national, Article 3 notwithstanding, if the offense(s) for
which extradition is sought were committed prior to January 1,
2005.
Article 22--Ratification and Entry into Force
Article 22 notes that the Treaty is subject to ratification
and shall enter into force upon the exchange of the instruments
of ratification. Article 22(3) provides that, upon entry into
force, the Treaty will supersede the 1901 Treaty with respect
to all requests submitted on or after the date of ratification
and to all pending requests.
Article 23--Termination
Under Article 23, either State may terminate the Treaty by
giving written notice to the other State through the diplomatic
channel. The termination shall be effective six months after
the date of such notice.
VII. Text of Resolution of Advice and
Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A DECLARATION.
The Senate advises and consents to the ratification of the
Treaty Between the United States of America and the Republic of
Serbia on Extradition, signed at Belgrade on August 15, 2016
(Treaty Doc. 115-1), subject to the declaration of section 2.
SEC. 2. DECLARATION.
The Senate's advice and consent under section 1 is subject
to the following declaration: The Treaty is self-executing.
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