U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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59–118

" ! SENATE 105TH CONGRESS

2d Session

TREATY DOC.

1998

105–50

EXTRADITION TREATY WITH AUSTRIA

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 AUSTRIA, SIGNED AT WASHINGTON ON JANUARY

8, 1998

JUNE 11, 1998.—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

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, June 11, 1998.

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 Austria, signed at Washington on January

8, 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 explains, the Treaty will not require implementing legislation.

This Treaty will, upon entry into force, enhance cooperation between the law enforcement communities of both countries. It will

thereby make a significant contribution to international law enforcement efforts. This Treaty will supersede and significantly improve upon the Treaty between the Government of the United

States and the Government of Austria for the extradition of fugitives from justice, signed at Vienna on January 31, 1930, and the

Supplementary Extradition Convention signed at Vienna on May

19, 1934.

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States.

I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, May 11, 1998.

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 Austria (‘‘the Treaty’’), signed in Washington on January 8, 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 in most respects.

The Treaty represents part of a concerted effort by the Department

of State and the Department of Justice to develop modern extradition relationships to enhance the United States’ ability to prosecute serious offenders including, especially, narcotics traffickers

and terrorists.

The Treaty marks a significant step in bilateral cooperation between the United States and Austria. Upon entry into force, it will

replace the Treaty between the Government of the United States

and the Government of Austria for the extradition of fugitives from

justice, signed at Vienna on January 31, 1930, and the Supplementary Extradition Convention signed at Vienna on May 19,

1934. Those treaties have become outmoded, and the new Treaty

will provide significant improvements. The Treaty does not require

implementing legislation.

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

to the provisions of the Treaty, any person whom the Authorities

in the Requesting State have charged with or found guilty of an extraditable offense.

Article 2(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 2(2) provides that if extradition is sought for the enforcement of a prison sentence or a preventive measure restricting liberty ordered by a criminal court for an extraditable offense, it shall

be granted only if at least three months of the sentence or preventive measure remain to be served.
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Article 2(3) provides that, if extradition has been granted pursuant to paragraph 1 or 2, it shall also be granted for any other offense requested, provided that all other requirements for extradition are met.

Article 2(4) provides flexibility to enable extradition in three specific situations. An offense is to be considered an extraditable offense: (A) whether or not the laws in the Parties place the offense

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

same terminology; (B) in criminal cases relating to taxes, customs

duties, currency control, and import and export of commodities,

whether or not the laws of the Parties provide for the same kinds

of taxes or customs duties, or controls on currency or on the import

or export of the same kinds of commodities; or (C) 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 merely for the purpose of establishing jurisdiction in a United States federal court.

Article 2(5) specifies that an extraditable offense also includes an

attempt to commit or a conspiracy to commit, or participation in

the commission of, an offense.

With regard to offenses committed outside the territory of the

Requesting State, Article 2(6) provides that extradition may be

granted for an extraditable offense regardless of where it was committed. Many United States criminal statutes have extraterritorial

application, and the United States frequently makes requests for

fugitives whose criminal activity occurred in foreign countries with

the intent, actual or implied, of affecting the United States. Austrian criminal law also has broad jurisdictional scope, containing

provisions to enable prosecution of Austrian nationals for offenses

committed in other countries under certain circumstances.

Article 3(1) provides that neither Party is required to extradite

its nationals, but the Executive Authority of the Requested State

has the discretionary power to do so, so long as the law of the Requested State does not preclude such extradition. Under Article

3(2), if extradition is refused solely on the basis of the nationality

of the person sought, the Requested State must, at the request of

the Requesting State, submit the case for domestic prosecution.

As is customary in extradition treaties, Article 4 incorporates a

political and military offenses exception to the obligation to extradite. Article 4(1) states generally that extradition shall not be

granted for a political offense. Article 4(2) specifies several categories of offenses that shall not be considered to be political offenses:

(A) murder;

(B) any other willful crime against the person of a Head of State

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

and

(C) an offense for which both Parties are obliged pursuant to a

multilateral international agreement to extradite the person sought

or to submit the case to their competent authorities for a decision

as to prosecution.
VII

Article 4(3) provides that extradition shall not be granted if the

executive authority of the Requested State determines that the request was politically motivated.

Article 4(4) permits the Requested State to deny extradition for

military offenses that are not offenses under ordinary criminal law

(for example, desertion).

Article 5 provides that extradition may be refused if the person

sought is proceeded against in the Requested State for the same offense. Article 5(2), however, declares that extradition may be granted if the competent authorities in the Requested State have declined to prosecute for the offenses for which extradition is requested or have decided to discontinue criminal proceedings

against the person sought for those acts.

Article 6(1) precludes extradition of a person who has been convicted or discharged with final and binding effect by the competent

authorities in the Requested State for the offense for which extradition is requested. Article 6(2) clarifies that an acquittal or a discharge for lack of jurisdiction is not an obstacle to extradition, however.

Article 7 provides that extradition shall not be granted when

prosecution or execution of a sentence has become barred by the

statute of limitations of the Requesting State.

Article 8(1) permits the Requested State to refuse extradition

when an offense is punishable by death under the laws in the Requesting State but not under the laws of the Requested State, unless the Requesting State provides the assurance that the death

penalty will not be imposed or, if imposed, will not be carried out.

Article 8(2) declares that the death penalty, if imposed by the

courts of the Requesting State, shall not be carried out in cases

where the Requesting State has provided an assurance in accordance with Article 8(1).

Article 9 states that extradition may be refused for a person who

has been found guilty in absentia, unless the Requesting State supplies assurances that the person has had or will be given an adequate opportunity to present a defense, or that there are adequate

remedies or additional proceedings available to the person after

surrender.

Article 10 establishes the procedures and describes the documents that are required to support an extradition request. Article

10(1) requires that all requests be submitted through the diplomatic channel. Article 10(3)(c) provides that a request for the extradition of a person sought for prosecution be supported by evidence

providing a reasonable basis to believe that the person committed

the offense for which extradition is requested and is the person

named in the arrest.

Article 11 enables a Requested State to seek from the Requesting

State supplementary information necessary to meet the requirements for extradition and to permit courts to grant a reasonable

continuance in order to allow the request to be fulfilled.

Article 12 requires that, unless otherwise agreed, all documents

submitted by the Requesting State be translated into the language

of the Requested State.

Article 13 sets forth procedures for the provisional arrest of a

person sought pending presentation of the formal request for extra-
VIII

dition. Article 13(4) provides that if the Requested State’s executive

authority has not received the request for extradition and required

supporting documentation within sixty (60) days after the provisional arrest, the person may be discharged from custody. Article

13(5) provides explicitly that discharge from custody pursuant to

Article 13(4) does not prejudice subsequent rearrest and extradition

of that person upon later delivery of the extradition request and

supporting documents.

Article 14 specifies the procedures governing surrender and return of persons sought. Article 14(1) requires the Requested State

to provide prompt notice to the Requesting State regarding its decision on the request for extradition, and, if the request is denied in

whole or in part, to provide an explanation of the reasons. If extradition is granted, the authorities of the Contracting Parties shall

decide on the time and place for the surrender of the person

sought. Article 14(3) provides that the person sought must be removed from the territory of the Requested State within the time

prescribed by its law or, if the law does not provide a specific time

for surrender, as is the case in Austria, within a reasonable period

of time to be determined by the Requested State. In such cases the

Requested State may subsequently refuse extradition for the same

offense. Article 14(4) provides an additional safeguard by allowing

a Contracting Party to postpone surrender if compelled by circumstances beyond its control.

Article 15 concerns postponed and deferred surrender. Article

15(1) provides that the Requested State may postpone the surrender of a person whose extradition has been granted if the person

is being proceeded against or is serving a sentence in the Requested State. Alternatively, subparagraph (2) enables the Requested State temporarily to surrender such a person to the Requesting State solely for the purpose of prosecution, subject to return to the Requested State thereafter, in accordance with conditions determined by the Contracting Parties.

Article 16 complements Article 15 by expressly permitting the

Requested State to defer the initiation of extradition proceedings

until after a prosecution in that State has been concluded.

Article 17(1) 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 17(2) provides that the Requested State, if it gives precedence to another

State, to report to the Requesting State on the extent to which it

waives the rule of specialty with respect to possible further extradition.

Article 18(1) 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. In accordance with Article 18(2), 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 18(3) imposes an obligation

to respect the rights of third parties in affected property. Article

18(4) makes inapplicable to the surrender of such items any restric-
IX

tive regulations concerning the import and export of articles and

foreign currency, thereby removing a potential obstacle under Austria’s currency control regulations.

Article 19 sets forth the rule of speciality. Article 19(1) provides,

subject to specific exceptions, that a person extradited under the

Treaty may not be detained, tried, punished, or subjected to any

other restriction on his personal liberty in the Requesting State in

relation to an offense committed prior to extradition other than

that for which extradition has been granted, unless a waiver of the

rule is granted by the executive authority of the Requested State.

Similarly, under Article 19(2), the Requesting State may not extradite such person to a third state for an offense committed prior to

the original surrender unless the surrendering State consents.

However, Article 19(3) makes clear that 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 days of being free to do so. Article 19(4)

stipulates that the rule of specialty shall not operate to prevent the

Requesting State from taking measures necessary under its law to

effect deportation of the extradited person from its territory or to

file charges against the person solely to preclude expiration of the

statute of limitations.

Article 20 permits surrender to the Requesting State without further proceedings if the person sought consents. The Rule of Specialty set out in Article 19 will not apply to a waiver.

Article 21 governs the transit through the territory of one Party

of a person being surrendered to the other State by a third State.

Article 22 contains provisions on representation and expenses

that are similar to those found in other modern extradition treaties. Specifically, the Requested State is required to represent the

interests of the Requesting State in any proceedings arising out of

a request for extradition. The Requesting State is required to bear

the expenses related to the translation of documents and the transportation of the person surrendered. Article 22(3) clarifies that neither State shall make any pecuniary claim against the other State

arising out of extradition procedures under the Treaty.

Article 23 states that the United States Department of Justice

and the Ministry of Justice of Austria may consult with each other

directly in connection with the processing of individual cases and

in furtherance of maintaining and improving Treaty implementation procedures.

Article 24, 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. Ratification and entry into force are addressed in Article

25. That Article provides that the Parties shall exchange instruments of ratification at Washington and that the treaty shall enter

into force on the first day of the third month after the exchange

of instruments of ratification. Upon entry into force of this Treaty,

the Treaty between the Government of the United States and the

Government of Austria for the extradition of fugitives from justice,

signed at Vienna on January 31, 1930, and the Supplementary Extradition Convention signed at Vienna on May 19, 1934, shall cease

to have effect, with certain noted exceptions.
X

Under Article 26, either Party may terminate the Treaty at any

time upon written notice to the other Party, with termination to become effective six months after the date of receipt 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 any early date.

Respectfully submitted.

STROBE TALBOT.
(1)
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