U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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99–118

" ! SENATE 107TH CONGRESS

2d Session

TREATY DOC.

2002

107–6

EXTRADITION TREATY WITH PERU

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF PERU, SIGNED AT LIMA ON JULY

26, 2001

MAY 8, 2002.—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, May 8, 2002.

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 Republic of Peru, signed at

Lima on July 26, 2001.

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.

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

United States and will replace the outdated extradition treaty in

force between the two countries signed in 1899. The Treaty will,

upon entry into force, enhance cooperation between the law enforcement communities of the two countries. It will make a significant contribution to international law enforcement efforts against

serious offenses, including terrorism, organized crime, and drugtrafficking.

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

GEORGE W. BUSH.

(V)

LETTER OF SUBMITTAL

APRIL 20, 2002.

THE PRESIDENT: I have the honor to submit to you the Extradition Treaty Between the United States of America and the Republic of Peru, signed at Lima on July 26, 2001. Upon its entry into

force, the Treaty would replace the outdated extradition treaty now

in force between the two countries that was signed in 1899. I recommend that the Treaty be transmitted to the Senate for its advice

and consent to ratification.

The Treaty follows generally the form and content of other extradition treaties recently concluded by the United States. The Treaty

represents a major step forward in U.S. efforts to strengthen cooperation with countries in the region in combating terrorism, organized crime, drug trafficking and other offenses. It is an important part of a concerted effort by the Department of State and the

Department of Justice to modernize the legal tools available for the

extradition of serious offenders.

The Treaty is designed to be self-executing and will not require

implementing legislation.

Article I obligates each Contracting State to extradite to the

other, pursuant to the provisions of the Treaty, persons whom the

authorities in the Requesting State have charged with, found guilty

of, or sentenced for an extraditable offense.

Article II concerns extraditable offenses. Article II(1) defines an

extraditable offense as one punishable under the laws in both Contracting States 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, as in the 1899 extradition treaty, obviates the need to

renegotiate or supplement the Treaty as additional offenses become

punishable under the laws in both Contracting States.

Article II(2) defines an extraditable offense further as including

an attempt or conspiracy to commit, or association or participation

in the commission of, an offense described in paragraph 1.

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

that an offense shall be an extraditable offense regardless of (a)

whether the laws in the Contracting States place the offense within

a different category of offenses or describe the offense by different

terminology, so long as the underlying conduct is criminal in both

States; (b) whether the offense is one for which the laws of the Requesting State require the showing of such matters as interstate

transportation, or use of the mails or other facilities affecting interstate or foreign commerce for the purpose of establishing jurisdiction of its courts; or (c) where the offense was committed.

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Finally, Article II(4) provides that if extradition is granted for

one or more extraditable offenses, it shall also be granted for any

other offense specified in the request even if that offense does not

meet the minimum penalty requirement, provided that all other extradition requirements are met.

Article III provides that extradition shall not be refused on the

ground that the person sought is a national of the Requested State.

Article IV sets forth bases for the denial of extradition. Paragraph 1 bars extradition: (a) if the person sought has been tried

and convicted or acquitted in the Requested State for the same offense (but does not preclude extradition if the competent authorities in the Requested State have decided not to prosecute such person for the same acts or have decided to discontinue criminal proceedings against the person for those acts); or (b) if prosecution of

the offense or execution of the penalty is barred by lapse of time

under the laws of the Requested State.

As customary in extradition treaties, Article IV(2) provides that

extradition shall not be granted if the offense for which extradition

is requested constitutes a political offense. It also specifies the following specific categories of offenses that are not to be considered

political offenses: (a) a murder or other violent crime against a

Head of State of one of the Contracting States, or a member of a

Head of State’s family; (b) genocide, as described in the Convention

on the Prevention and Punishment of the Crime of Genocide, done

at Paris on December 9, 1948; (c) an offense for which both Contracting States have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the

case to their competent authorities for decision as to prosecution,

including but not limited to illicit drug trafficking and related offenses, as described in the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at

Vienna on December 20, 1988; and offenses related to terrorism, as

set forth in multilateral international agreements to which both

Contracting States are parties (e.g., the Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on December 16, 1970); and (d) an attempt or conspiracy to commit, or

association or participation in the commission of, any of the foregoing offenses.

Article IV(3) requires that extradition not be granted if the executive authority of the Requested State determines that the request

was politically motivated.

Article IV(4) provides that the executive authority of the Requested State may also refuse extradition for offenses under military law which are not offenses under ordinary criminal law (e.g.,

desertion).

Finally, under Article IV(5), the executive authority of the Requested State may refuse extradition if the person sought would be

tried, or punished as the result of a trial, under extraordinary

criminal laws or procedures in the Requesting State. This provision

was included in the Treaty at the instance of the U.S. delegation

in response to concerns over due process before special terrorism

tribunals in Peru. Under this paragraph, the executive authority of

the Requested State would have discretion to deny extradition if

the person sought would be or has been tried in a special terrorism

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tribunal and there were no procedures in place to safeguard the

due process rights of the accused.

Article V concerns capital punishment. Under Article V, 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 of the Requested

State may refuse extradition unless the Requesting State provides

an assurance that the person sought will not be executed. The

United States has agreed to similar formulations in other modern

extradition treaties (e.g., those with Argentina, the Republic of

Korea and India). In cases in which such an assurance is provided,

the death penalty shall not be carried out, even if imposed by the

courts in the Requesting State. Article V(2) provides further that,

except in instances in which the death penalty applies, extradition

shall not be refused, nor conditions imposed, on the basis that the

penalty for the offense is greater in the Requesting State than in

the Requested State.

Article VI establishes the procedures and describes the documents that are required to support a request for extradition. All requests for extradition must be submitted through the diplomatic

channel. Among other requirements, Article VI(3) provides that a

request for the extradition of a person sought for prosecution must

be supported by such evidence as would be sufficient to justify committal for trial of the person if the offense had been committed in

the Requested State. Under Article VI(5), if the Requested State requires additional evidence or information to enable it to decide on

the request for extradition, such evidence or information shall be

submitted to it within such time as that State shall require.

Article VII requires that all documents submitted by the Requesting State be accompanied by a translation into the language

of the Requested State and establishes the procedures under which

such documents shall be received and admitted as evidence in the

Requested State.

Article VIII sets forth procedures and describes the information

that is required for the provisional arrest and detention of the person sought, in case of urgency, pending presentation of the formal

request for extradition. In particular, Article VIII(4) provides that

if the Requested State’s executive authority has not received the

extradition request and supporting documents required by Article

VI within sixty days from the date of the provisional arrest, the

person may be discharged from custody. Article VIII(5) explicitly

provides that such a discharge from custody shall not be an obstacle to the person’s re-arrest and extradition if the formal extradition request is received later.

Article IX specifies the procedures governing a decision on the

extradition request and the surrender of the person sought. It requires the Requested State to process the extradition request in accordance with the procedures set forth in its law and the Treaty,

and to promptly notify the Requesting State, through the diplomatic channel, of its decision regarding a request. If extradition is

granted, the Contracting 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, if any, the person may

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be discharged from custody and the Requested State may thereafter refuse extradition for the same offense. Article IX also provides that if unforeseen circumstances prevent the surrender of the

person sought, the States shall agree on a new date, consistent

with the laws of the Requested State. If the request is denied in

whole or in part, Article IX(4) requires the Requested State to provide an explanation of the reasons for the denial and, upon request,

copies of pertinent decisions.

Article X addresses deferred and temporary surrender. Under Article X(1) if a person whose extradition is sought is being prosecuted or is serving a sentence in the Requested State, that State

may postpone the extradition proceedings against, or the surrender

of, that person until its prosecution has been concluded or the sentence has been served. Alternatively, Article X(2) provides that in

such circumstances the Requested State may, in exceptional cases,

temporarily surrender the person to the Requesting State exclusively for the purpose of prosecution. The person so surrendered is

to be kept in custody in the Requesting State and returned to the

Requested State after the conclusion of the proceedings against

that person, on conditions agreed between the Contracting States.

Article XI 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.

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

permitted under its law, seize and surrender to the Requesting

State all articles, documents and evidence connected with the offense for 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. Surrender of

such items may be deferred for such time as is deemed necessary

for an investigation or proceeding in the Requested State or may

be made on condition that they be returned to the Requested State

as soon as practicable. Article XII(3) provides that the rights of the

Requested State or of third parties in such items must be duly respected.

Article XIII sets forth the rule of specialty 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

any offense (a) for which extradition was granted, or a differently

denominated offense 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) committed after the extradition of the person; or (c) for which the executive authority of

the Requested State consents to the person’s detention, trial or

punishment. Article XIII (2) provides that a person extradited

under the Treaty may not be extradited to a third State for an offense committed prior to surrender unless the surrendering State

consents. Under paragraph 3, these restrictions do not apply if the

person has left the jurisdiction of the State to which surrendered

and voluntarily returned or has had the opportunity to leave and

has not done so within ten days.

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Article XIV permits surrender without further proceedings if the

person sought consents to be surrendered.

Article XV governs the transit through the territory of one Contracting State of a person being surrendered to the other Contracting State by a third country.

Article XVI contains provisions on representation and expenses

that are similar to those found in other modern U.S. extradition

treaties. 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 by reason of the extradition proceedings, except that the

Requesting State pays expenses related to translation of documents

and the transportation to the Requesting State of the person

sought. Article XVI (3) specifies that neither Contracting State

shall make any pecuniary claim against the other arising out of the

arrest, detention, custody, examination, or surrender of persons

under the Treaty.

Article XVII provides that the U.S. Department of Justice and

the Peruvian Ministry of Justice may consult with each other directly in connection with the processing of individual cases and in

furtherance of maintaining and improving procedures for the implementation of the Treaty.

Article XVIII, like the parallel provisions in almost all recent

U.S. extradition treaties, makes the Treaty applicable to extradition requests pending on the date of its entry into force and to

subsequent extradition requests, even if the crimes were committed

prior to the date of entry into force, so long as they constituted offenses under the laws in both Contracting States at the time of

their commission.

Article XIX 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 upon the exchange of instruments of ratification, which is to take place as soon

as possible. Either State may terminate the Treaty with six months

written notice to the other State. Article XIX (2) provides that,

upon entry into force of the Treaty, the Treaty on Extradition Between the United States of America and the Republic of Peru,

signed at Lima November 28, 1899, and the related agreement of

February 15, 1990, done at Cartagena, Colombia, shall become null

and void.

A Technical Analysis explaining in detail the provisions of the

Treaty is being prepared by the U.S. negotiating delegation, consisting of representatives from the Departments of State and Justice, and will be transmitted 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,

COLIN L. POWELL.

(1)

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