U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

49–118 

" ! SENATE 109TH CONGRESS

2d Session 

TREATY DOC. 

109–17 

2006

EXTRADITION TREATY WITH MALTA 

MESSAGE 

FROM

THE PRESIDENT OF THE UNITED STATES 

TRANSMITTING

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF MALTA, SIGNED ON MAY 18, 

2006, AT VALLETTA, WITH AN EXCHANGE OF LETTERS 

SEPTEMBER 29, 2006.—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 


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LETTER OF TRANSMITTAL 

THE WHITE HOUSE, September 29, 2006. 

To the Senate of the United States: 

With a view to receiving the advice and consent of the Senate to 

ratification, I transmit herewith the Extradition Treaty between 

the United States of America and the Government of Malta, signed 

on May 18, 2006, at Valletta, that includes an exchange of letters 

that is an integral part of the treaty. I also transmit, for the information of the Senate, the report of the Department of State with 

respect to the treaty. 

The new extradition treaty with Malta would replace the outdated extradition treaty between the United States and Great Britain, signed on December 22, 1931, at London, and made applicable 

to Malta on June 24, 1935. The treaty also fulfills the requirement 

for a bilateral instrument between the United States and each European Union (EU) Member State in order to implement the Extradition Agreement between the United States and the EU. Two 

other comprehensive new extradition treaties with EU Member 

States—Estonia and Latvia—likewise also serve as the requisite bilateral instruments pursuant to the U.S.-EU Agreement, and therefore also are being submitted separately and individually. 

The treaty follows generally the form and content of other extradition treaties recently concluded by the United States. It would replace an outmoded list of extraditable offenses with a modern ‘‘dual 

criminality’’ approach, which would enable extradition for such offenses as money laundering and other newer offenses not appearing on the list. The treaty also contains a modernized ‘‘political offense’’ clause. It further provides that extradition shall not be refused based on the nationality of a person sought for any of a comprehensive list of serious offenses; in the past, Malta has declined 

to extradite its nationals to the United States. Finally, the new 

treaty incorporates a series of procedural improvements to streamline and speed the extradition process. 

I recommend that the Senate give early and favorable consideration to the treaty. 

GEORGE W. BUSH. 


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LETTER OF SUBMITTAL 

DEPARTMENT OF STATE, Washington, August 3, 2006. 

The PRESIDENT, 

The White House. 

THE PRESIDENT: I have the honor to submit to you the Extradition Treaty between the United States and Malta, and related exchange of letters, signed on May 18, 2006. Upon its entry into 

force, the Treaty would replace the Extradition Treaty between the 

United States and Great Britain, signed on December 22, 1931, 

and made applicable to Malta on June 24, 1935. It also fulfills the 

requirement for a bilateral instrument between the United States 

and each member state of the European Union implementing the 

Extradition Agreement between the United States and the European Union signed on June 25, 2003, which is being separately 

submitted. A detailed, article-by-article analysis enclosed with this 

report. I recommend that the Treaty, and related exchange of letters, be transmitted to the Senate for its advice and consent to ratification. The Treaty is self-executing and will not require implementing legislation. 

Respectfully submitted. 

CONDOLEEZZA RICE. 

Enclosures: Overview and analysis of the provisions of the Agreement. 

U.S.-MALTA EXTRADITION TREATY

OVERVIEW

The U.S.-Malta Extradition Treaty replaces an outdated 1931 

Treaty with Great Britain, which was made applicable between the 

United States and Malta in 1935. It also serves to implement between the United States and Malta the provisions of the U.S.-EU 

Extradition Agreement. 

The following is an Article-by-Article description of the provisions 

of the Treaty. 

Article 1 obligates each Party to extradite to the other, pursuant 

to the provisions of the Treaty, persons sought by the authorities 

in the Requesting State for trial or punishment for extraditable offenses. 

Article 2 concerns extraditable offenses, and is taken from Article 

4 of the U.S.-EU Extradition Agreement. Article 2(1) defines an offense as extraditable if the conduct on which the offense is based 

is punishable under the laws in both States by deprivation of liberty for a period of more than one year or by a more severe penVerDate Aug 31 2005 02:59 Oct 06, 2006 Jkt 049118 PO 00000 Frm 00005 Fmt 7633 Sfmt 7633 E:\HR\OC\TD017.XXX TD017

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of offenses listed in the 1931 Treaty, obviates the need to renegotiate or supplement the Treaty as additional offenses become punishable under the laws in both States. Article 2(1) further defines 

an extraditable offense as including an attempt or a conspiracy to 

commit, or participation in the commission of an extraditable offense. The Parties intended to include the offenses of aiding, abetting, counseling or procuring the commission of an offense, as well 

as being an accessory to an offense, under the broad description of 

participation. 

Article 2(2) provides that if extradition is granted for an extraditable offense, it may also be granted for any other offense specified in the request if the latter offense is punishable by one year’s 

deprivation of liberty or less, provided that all other requirements 

for extradition are met. 

Additional flexibility is provided by Article 2(3), which provides 

that an offense shall be an extraditable offense: (a) whether or not 

the laws in the Requesting and Requested States place the offense 

within the same category of offenses or describe the offense by the 

same terminology; (b) whether or not the offense is one for which 

United States federal 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 jurisdictional only; or (c) in criminal cases relating to taxes, customs duties, currency control, or commodities. 

With regard to offenses committed outside the territory of the 

Requesting State, Article 2(4) provides that extradition shall be 

granted in accordance with the provisions of the Treaty if the laws 

in the Requested State provide for the punishment of such conduct 

committed outside its territory in similar circumstances. If the laws 

in the Requested State do not provide for the punishment of such 

conduct committed outside of its territory in similar circumstances, 

the executive authority of the Requested State, in its discretion, 

may grant extradition provided that all other requirements of the 

Treaty are met. 

Article 3(1) provides that extradition shall not be refused based 

on the nationality of the person sought, for any offense falling within a comprehensive enumerated list of thirty offenses. The list mirrors those offenses for which surrender of nationals by one member 

state of the European Union to another is mandatory under the 

European Arrest Warrant procedure. In addition, the Requested 

State may choose to extradite a national for an offense not enumerated in paragraph 1. In the event that the Requested State denies 

extradition with respect to an offense not so enumerated, it shall, 

at the request of the Requesting State, submit the case to its competent authorities for prosecution. Under Article 3(4), the Parties 

also may agree to expand the list at a future time. 

Article 4 sets forth bases for the denial of extradition. As is customary in extradition treaties, paragraph 1 provides that extradition shall not be granted if the offense for which extradition is 

requested constitutes a political offense. 

Article 4(2) specifies six categories of offenses that shall not be 

considered to be political offenses: (a) a murder or other violent 

crime against 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 ParVerDate Aug 31 2005 00:33 Oct 06, 2006 Jkt 049118 PO 00000 Frm 00006 Fmt 7633 Sfmt 7633 E:\HR\OC\TD017.XXX TD017

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ties have the obligation pursuant to a multilateral international 

agreement on genocide, terrorism, drugs, or other crimes to extradite the person sought or to submit the case to their competent authorities for decision as to prosecution; (c) murder, manslaughter, 

malicious wounding, or willfully inflicting grievous bodily harm; (d) 

an offense involving kidnapping, abduction, or any form of unlawful detention, including the taking of a hostage; (e) placing or using 

an explosive, incendiary, or destructive device or firearm capable of 

endangering life, of causing substantial bodily harm or substantial 

property damage; and (f) an attempt or a conspiracy to commit, or 

aiding or abetting a person who commits or attempts to commit, 

any of the foregoing offenses. 

Article 4(3) provides that offenses under military law that are 

not offenses under ordinary criminal law (e.g., desertion) are excluded from the scope of the Treaty. 

Article 5 provides that extradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated. 

Article 6(1) provides that extradition shall not be granted when 

the person sought has been convicted or acquitted in the Requested 

State for the offense for which extradition is requested, or where 

the person sought is otherwise immune from prosecution for that 

offense by reason of that State’s law relating to prior prosecution. 

Article 6(2) provides that extradition shall not be precluded by the 

fact that the competent authorities of the Requested State: (a) have 

decided not to prosecute the person sought for the acts for which 

extradition is requested; (b) have decided to discontinue any criminal proceedings that have been instituted against the person 

sought for those acts; or (c) are still investigating the person sought 

for the same acts for which extradition is sought. 

Letters exchanged at the time of signature of the Treaty and 

forming an integral part of it clarify the application of this Article 

in relation to the possible granting of clemency or amnesty to a 

person sought for extradition. The letters state that clemency and 

amnesty are decided under a Party’s domestic law, and that in the 

event such a grant may have a bearing on a request for extradition, 

the Parties shall consult. 

Article 7 provides that the Requested State, if so required by its 

law, may take into account its or the Requesting State’s laws concerning lapse of time. 

Article 8 concerns capital punishment, and is taken from Article 

13 of the U.S.-EU Extradition Agreement. Pursuant to paragraph 

1, when an offense for which extradition is sought is punishable by 

death under the laws in the Requesting State but not under the 

laws in the Requested State, the executive authority in the Requested State may refuse extradition unless the Requesting State 

provides an assurance that the death penalty will not be imposed 

or, if imposed, will not be carried out. Paragraph 2 provides that 

where such an assurance is given, the death penalty shall not be 

carried out. 

Article 9 establishes the procedures and describes the documents 

that are required to support a request for extradition. Paragraph 

1, which is taken from Article 5(1) of the U.S.-EU Extradition 

Agreement, provides that all requests for extradition must be subVerDate Aug 31 2005 00:33 Oct 06, 2006 Jkt 049118 PO 00000 Frm 00007 Fmt 7633 Sfmt 6602 E:\HR\OC\TD017.XXX TD017

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Agreement, provides that all requests for extradition must be submitted through the diplomatic channel, which shall include transmission under Article 13(4). Among other requirements, Article 9(3) 

provides that a request for the extradition of a person sought for 

prosecution must be supported by: (a) a copy of the warrant or 

order of arrest issued by a judge or other competent authority; (b) 

a copy of the charging document, if any; and (c) such information 

as would provide a reasonable basis to believe that the person 

sought committed the offense for which extradition is sought. 

Pursuant to Article 9(4), a request for extradition of a person 

who has been convicted in absentia must be supported by the documents required in a request for a person who is sought for prosecution. 

Article 9(5), which is taken from Article 8 of the U.S.-EU Extradition Agreement, authorizes the furnishing of additional information, if the Requested State deems it necessary to support an extradition request, and specifies that such information may be requested and supplied directly between the United States Department of Justice and the Ministry of Justice of Malta. Article 9(6), 

addressing the submission of sensitive information in extradition 

requests, is taken from Article 14 of the U.S.-EU Extradition 

Agreement. 

Article 10 concerns admissibility of documents, and is taken from 

Article 5 of the U.S.-EU Extradition Agreement. It provides that 

documents bearing the certificate or seal of either the Ministry of 

Justice or foreign affairs Ministry or Department of the Requesting 

State shall be admissible in extradition proceedings in the Requested State without further certification. 

Article 11 provides that the Requested State may refuse extradition of a person found guilty in absentia in the Requesting State, 

unless the Requesting State provides sufficient assurances that the 

person was afforded an adequate opportunity to present a defense 

or that there are adequate remedies available to him after surrender. 

Article 12 provides that all documents submitted under the Treaty by the Requesting State shall be in English or accompanied by 

a translation into English. 

Article 13 sets forth procedures and describes the information 

that is required for the provisional arrest and detention of the person sought, pending presentation of the formal request for extradition. The Parties intend for provisional arrest requests to be 

made generally in cases of urgency, as determined by the executive 

authority of the Requested State. Paragraph 1, which sets forth 

procedures for transmission of a request for provisional arrest, is 

taken from Article 7 of the U.S.-EU Extradition Agreement. Article 

13(4) provides that if the Requested State’s executive authority has 

not received the request for extradition and supporting documents 

within forty (extendable to sixty) days from the date of provisional 

arrest, the person may be discharged from custody. Paragraph 4 

also provides an alternative channel for receipt of extradition requests with respect to persons who have been provisionally arrested, taken from Article 6 of the U.S.-EU Extradition Agreement. 

Article 13(5) explicitly provides that the discharge of a person from 

custody pursuant to Article 13(4) does not prejudice the person’s 


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subsequent rearrest and extradition if the extradition request and 

supporting documents are delivered at a later date. 

Article 14 specifies the procedures governing a decision on the 

extradition request and the surrender of the person sought. It requires the Requested State to promptly notify the Requesting State 

of its decision regarding a request. Such notification should be 

transmitted through the diplomatic channel and directly to the Requesting State’s Justice authorities. If the request is denied in 

whole or in part, the Requested State must provide reasons for the 

denial and, upon request, copies of pertinent judicial decisions. If 

extradition is granted, the States shall agree on the time and place 

for the surrender of the person sought. If the person sought is not 

removed from the territory of the Requested State within the time 

period prescribed by the law of that State, the person may be discharged from custody, and the Requested State, in its discretion, 

may subsequently refuse extradition for the same offense(s). 

Article 15 addresses deferred surrender. It provides that the Requested State may postpone the extradition proceedings against a 

person who is being prosecuted or who is serving a sentence in that 

state. 

Article 16, on temporary surrender, is taken from Article 9 of the 

U.S.-EU Extradition Agreement. Paragraph 1 provides that if a 

person whose extradition is sought is being proceeded against or is 

serving a sentence in the Requested State, the Requested State 

may temporarily surrender the person to the Requesting State for 

the purpose of prosecution. According to paragraph 2, the Requesting State shall keep the person so surrendered in custody and shall 

return that person to the Requested State after the conclusion of 

the proceedings against that person, in accordance with conditions 

to be determined by mutual agreement of the States. Time spent 

in custody in the Requesting State pending prosecution there may 

be deducted from the time to be served in the Requested State. 

Article 17 provides a non-exclusive list of factors to be considered 

by the executive authority of the Requested State in determining 

to which State to surrender a person whose extradition is sought 

by more than one State, and is taken from Article 10 of the U.S.- 

EU Extradition Agreement. It includes, in paragraph 2, language 

establishing the applicability of this analysis to competing requests 

from the United States and from a member state of the European 

Union made to Malta under the European Arrest Warrant. 

Article 18 provides that the Requested State may, to the extent 

permitted under its law, seize and surrender to the Requesting 

State all items, including articles, documents, and evidence, that 

are connected with the offense in respect of which extradition is 

granted. Such items may be surrendered even if the extradition 

cannot be carried out due to the death, disappearance, or escape of 

the person sought. The Requested State may condition the surrender of the items upon satisfactory assurances that the property 

will be returned to the Requested State as soon as practicable. The 

Requested State may also defer the surrender of such items if they 

are needed as evidence in the Requested State. The rights of third 

parties in such items are to be respected in accordance with the 

laws of the Requested State. 


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Article 19 sets forth the rule of speciality under international 

law. Paragraph 1 provides, subject to specific exceptions set forth 

in paragraph 3, that a person extradited under the Treaty may not 

be detained, tried, or punished in the Requesting State except for: 

(a) any offense for which extradition was granted, or a lesser included offense shown by its constituent elements to be an extraditable offense and based on the same facts as the offense for which 

extradition was granted; (b) any offense committed after the extradition of the person; or (c) any offense for which the executive authority of the Requested State waives the rule of speciality and 

thereby consents to the person’s detention, trial, or punishment. 

The treaty currently in place does not contain such a provision for 

waiver of the rule of speciality, and the preferred practice of States 

is not to waive the rule of speciality unless there is a treaty provision authorizing them to do so. 

Article 19(2) addresses the situation of an altered description of 

the offense charged occurring during a proceeding, and permits 

prosecution or sentencing only insofar as the offense as newly described is shown by its constituent elements to be an extraditable 

offense, is based on the same facts, and is punishable by the same 

or a lesser maximum penalty. 

Article 19(3) provides that a person extradited under the Treaty 

may not be the subject of onward extradition to a third State or 

an international tribunal for any offense committed prior to the extradition to the Requesting State unless the Requested State consents. 

Under Article 19(4), these restrictions shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of a person to a third State, if the extradited person leaves 

the territory of the Requesting State after extradition and voluntarily returns to it or fails to leave the territory of the Requesting 

State within thirty (30) days of being in a position to leave. 

Article 20 permits surrender without further proceedings if the 

person sought waives extradition. 

Article 21 permits the person sought to consent to surrender in 

accordance with simplified extradition procedures, including by 

agreeing to waiver of protection of the rule of speciality. 

Article 22 governs the transit through the territory of one State 

of a person surrendered to the other State by a third country, and 

is taken from Article 12 of the U.S.-EU Extradition Agreement. 

Article 23 contains provisions on representation and expenses. 

Specifically, the Requested State is required to advise, assist, appear in court on behalf of, and represent the interests of the Requesting State in any proceedings arising out of a request for extradition. The Requested State also bears all expenses incurred in 

that State in connection with the extradition proceedings, except 

that the Requesting State pays expenses related to translation of 

extradition documents and the transportation of the person surrendered. Article 23(3) specifies that neither State shall make any pecuniary claim against the other arising out of the arrest, detention, 

examination, or surrender of persons under the Treaty. 

Article 24 provides that the United States Department of Justice 

and the Ministry of Justice of Malta may consult in connection 


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with the processing of individual cases and in furtherance of efficient application of the Treaty. 

Article 25 makes the Treaty applicable to offenses committed before as well as on or after the date it enters into force. 

Article 26 contains final clauses dealing with the Treaty’s entry 

into force and termination. It provides that the Treaty is subject to 

ratification and that the Treaty shall enter into force on the first 

day following the third month after the date on which the Parties 

have exchanged notification that the respective internal procedures 

have been completed. Article 26(2) provides that, upon entry into 

force of the Treaty, the Extradition Treaty with the United Kingdom, signed at London, December 22, 1931 and previously applicable to Malta, shall cease to have any effect. 

Article 27 stipulates that either State may terminate the Treaty 

with six months written notice to the other State through the diplomatic channel. 

The Department of Justice joins the Department of State in favoring approval of this Treaty by the Senate at the earliest possible 

date. 


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