EXTRADITION TREATY WITH PARAGUAY

[Senate Treaty Document 106-4]
[From the U.S. Government Printing Office]



106th Congress Treaty Doc.
SENATE
1st Session 106-4
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EXTRADITION TREATY WITH PARAGUAY

__________

MESSAGE from THE PRESIDENT OF THE UNITED STATES

transmitting

EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF

AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF PARAGUAY, SIGNED AT

WASHINGTON ON NOVEMBER 9, 1998

July 13, 1999.--Treaty was read the first time, and together with the

accompanying papers, referred to the Committee on Foreign Relations and

ordered to be printed for the use of the Senate

__________

U.S. GOVERNMENT PRINTING OFFICE

69-118 WASHINGTON : 1999

LETTER OF TRANSMITTAL

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The White House, July 13, 1999.

To the Senate of the United States:

With a view to receiving the advice and consent of the

Senate to ratification, I transmit herewith the Extradition

Treaty between the Government of the United States of America

and the Government of the Republic of Paraguay, signed at

Washington on November 9, 1998.

In addition, I transmit, for the information of the Senate,

the report of the Department of State with respect to the

Treaty. As the report states, the Treaty will not require

implementing legislation.

The provisions in this Treaty follow generally the form and

content of extradition treaties recently concluded by the

United States.

Upon entry into force, this Treaty would enhance

cooperation between the law enforcement authorities of both

countries, and thereby make a significant contribution to

international law enforcement efforts. The Treaty would

supersede the Extradition Treaty between the United States of

America and the Republic of Paraguay signed at Asuncion on May

24, 1973.

I recommend that the Senate give early and favorable

consideration to the Treaty and give its advice and consent to

ratification.

William J. Clinton.

LETTER OF SUBMITTAL

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Department of State,

Washington, June 24, 1999.

The President,

The White House.

The President: I have the honor to submit to you the

Extradition Treaty between the Government of the United States

of America and the Government of the Republic of Paraguay (the

``Treaty''), signed at Washington on November 9, 1998. I

recommend that the Treaty be transmitted to the Senate for its

advice and consent to ratification.

The Treaty follows closely the form and content of

extradition treaties recently concluded by the United States.

It represents part of a concerted effort by the Department of

State and the Department of Justice to develop modern

extradition relationships to enhance the ability of the United

States to prosecute serious offenders, including, especially,

narcotics traffickers and terrorists.

The Treaty marks a significant step in bilateral

cooperation between the United States and Paraguay. Upon entry

into force, it would supersede the extradition treaty currently

in force between the two countries, signed at Asuncion on May

24, 1973. The current treaty has become outmoded, and the new

treaty will provide significant improvements. The new treaty

can be implemented without new legislation.

Article I obligates each Party to extradite to the other,

pursuant to the provisions of the Treaty, any person sought in

the Requesting State for trial or punishment for an

extraditable offense.

Article II(1) defines an extraditable offense as one

punishable under the laws in both Parties by deprivation of

liberty for a maximum period of more than one year, or by a

more severe penalty. Use of such a ``dual criminality'' clause

rather than a list of offenses covered by the Treaty obviates

the need to renegotiate or supplement the Treaty as additional

offenses become punishable under the laws of both Parties.

Article II(3) defines an extraditable offense to include

also an attempt or a conspiracy to commit, or the participation

in the commission of, an extraditable offense.

Additional flexibility is provided by Article II(4), which

provides that an offense shall be considered an extraditable

offense whether or not the laws of the Parties place the

offense within the same category of offenses or describe the

offense bythe same terminology; and whether or not the offense

is one for which the Requesting State's law requires the showing of

such matters as interstate transportation or use of the mails or of

other facilities affecting interstate or foreign commerce, such matters

being merely for the purpose of establishing jurisdiction in the

appropriate court.

With regard to an offense committed outside the territory

of the Requesting State, Article II(5) provides that such an

offense shall be an extraditable offense if it has effects in

the territory of the Requesting State, or if the laws in the

Requested State provide for punishment of an offense committed

outside its territory in similar circumstances.

Article III provides that extradition shall not be refused

on the ground that the person sought is a national of the

Requested State. Neither Party, in other words, may invoke

nationality as a basis for denying an extradition.

As is customary in extradition treaties, Article IV

incorporates a political offense exception to the obligation to

extradite. Article IV(1) states generally that extradition

shall not be granted for a political offense. The article

expressly excludes from the reach of the political offense

exception several categories of offenses:

(a) a murder or other willful crime against the

physical integrity of the Head of State of one of the

Parties, or of a member of the Head of State's family;

(b) an offense for which both Parties are obliged

pursuant to a multilateral international agreement to

extradite the person sought or submit the case to their

competent authorities for decision as to prosecution;

and

(c) a conspiracy or attempt to commit the offenses

described above, or participation in the commission of

such offenses.

Article IV(2) provides that extradition shall not be

granted if the competent authority of the Requested State

determines that the request was politically motivated.

Article IV(3) provides that the Requested State may refuse

extradition for offenses under military law that are not

offenses under ordinary criminal law (for example, desertion).

Article V bars extradition when the person sought has been

convicted or acquitted in the Requested State for the same

offense, but does notbar extradition if the competent

authorities in the Requested State have declined to prosecute for the

acts for which extradition has been requested. In addition, extradition

shall not be precluded by the fact that the authorities in the

Requested State, after initiating criminal proceedings, have decided to

discontinue them, so long as the Requested State's laws regarding

double jeopardy would permit the future reinstitution of such criminal

proceedings.

Under Article VI(1), when an offense is punishable by death

in the Requesting State, but not in the Requested State, the

latter may refuse extradition unless the Requesting State

provides assurances that the death penalty will not be imposed

or, if imposed, will not be carried out. In cases where the

Requesting State has provided such assurances, Article VI(2)

states that the death penalty, if imposed by the courts of the

Requesting State, will not be carried out.

Articles VII-IX address matters related to the presentation

and processing of extradition requests. Article VII describes

the documents that are required to support a request for

extradition. Article VIII provides that all documents submitted

by the Requesting State shall be translated into the language

of the Requested State. Article IX states the criteria under

which documents submitted pursuant to Article VII shall be

received and admitted into evidence in the Requested State.

Article X sets forth procedures for the provisional arrest

and detention of a person sought, in case of urgency, pending

presentation of the formal request for extradition. Article

X(4) provides that if the Requested State's diplomatic

authority has not received the request for extradition and

supporting documentation within sixty (60) days after the

provisional arrest, the person may be discharged from custody.

Article X(5) provides explicitly that discharge from custody

pursuant to Article X(4) shall not prevent subsequent re-arrest

and extradition upon later delivery of the extradition request

and supporting documents.

Article XI specifies the procedures governing the surrender

and return of persons sought. The Requested State is required

to notify promptly the Requesting State of its decision on

extradition and, if the request is denied in whole or in part,

to provide an explanation of the reasons for the denial of the

request. If the request is granted, the Parties shall agree on

the time and place for the surrender of the person sought. Such

person must be removed from the territory of the Requested

State within two months from the date of the judicial

extradition order. Otherwise, that person may be discharged

from custody, and the Requested State mayrefuse a subsequent

extradition request from the Requesting State for that person for the

same offense.

Article XII concerns temporary and deferred surrender. If a

person whose extradition is sought is being prosecuted or is

serving a sentence in the Requested State, that State may

temporarily surrender the person to the Requesting State solely

for the purpose of prosecution. Alternatively, the Requested

State may postpone the extradition proceedings until the

domestic prosecution has been concluded and any sentence

imposed has been served.

Article XIII sets forth a non-exclusive list of factors to

be considered by the Requested State in determining to which

State to surrender a person sought by more than one State.

Article XIV provides for the seizure and surrender to the

Requesting State of property connected with the offense for

which extradition is granted, to the extent permitted under the

law of the Requested State. Such property may be surrendered

even when extradition cannot be effected due to the death,

disappearance, or escape of the person sought. Surrender of

property may be deferred if it is needed as evidence in the

Requested State and may be conditioned upon satisfactory

assurances that it will be returned. Article XIV(3) imposes an

obligation to respect the rights of third Parties in affected

property.

Article XV sets forth the rule of speciality. It provides

that a person extradited under the Treaty may not be detained,

tried, or punished in the Requesting State for an offense other

than that for which extradition has been granted, or a lesser

included or differently denominated offense based on the same

facts on which extradition has been granted. However, the

article sets forth a number of exceptions, including the

consent of the competent authority of the Requested State.

Similarly, the Requesting State may not extradite the person to

a third state for an offense committed prior to the original

surrender unless the surrendering State consents. These

restrictions do not apply if the extradited person leaves the

Requesting State after extradition and voluntarily returns to

it or fails to leave the Requesting State within thirty (30)

days of being free to do so.

Article XVI permits surrender to the Requesting State

without further proceedings if the person sought directly and

expressly consents.

Article XVII governs the transit through the territory of

one Party of a person being surrendered to the other Party by a

third State.

Article XVIII contains provisions on representation and

expenses. Specifically, theRequested State is obligated, to the

fullest extent permitted by its law, to represent the Requesting State

in any proceedings arising out of a request for extradition. The

Requesting State shall bear the expenses related to the translation of

documents and the transportation of the person surrendered. Article

XVIII(3) provides that neither Party shall make any pecuniary claim

against the other Party related to the arrest, detention, custody,

examination, or surrender of persons sought under the Treaty.

Article XIX provides that, for the United States of

America, the term ``competent authority,'' as used in the

Treaty, means the appropriate executive authorities.

Article XX states that the Parties may consult with each

other in connection with the processing of cases and in

furtherance of maintaining and improving procedures for the

implementation of the Treaty.

Article XXI, like the parallel provision in almost all

recent United States extradition treaties, states that the

Treaty shall apply to offenses committed before as well as

after the date the Treaty enters into force. The conduct in

question must have been an offense under the laws of both

Parties when it occurred.

Article XXII contains final clauses dealing with the

Treaty's ratification and entry into force. Paragraph 1 states

that the Treaty shall be subject to ratification, and the

instruments of ratification shall be exchanged at Asuncion as

soon as possible. Paragraph 2 states the Treaty shall enter

into force upon the exchange of instruments of ratification.

Paragraph 3 provides that, upon entry into force of this

Treaty, the Treaty on Extradition between the United States of

America and the Republic of Paraguay, signed at Asuncion on May

24, 1973, shall cease to have any effect, with certain

specified exceptions.

Article XXIII provides that either Party may terminate the

Treaty at any time by giving written notice to the other Party,

and the termination shall be effective six months after the

date of such notice.

A Technical Analysis explaining in detail the provisions of
the Treaty is being prepared by the United States negotiating
delegation and will be submitted separately to the Senate
Committee on Foreign Relations.
The Department of Justice joins the Department of State in
favoring approval of this Treaty by the Senate at the earliest
possible date.
Respectfully submitted,
Madeleine Albright.
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