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12916 Austria - Treaty on Extradition


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 12916

 

 

EXTRADITION

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and AUSTRIA

 

Signed at Washington January 8, 1998

 

 

 

 



 

 


NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”


 

 

 

 

AUSTRIA

Extradition

Treaty signed at Washington January 8, 1998;
Transmitted by the President of the United States of America
to the Senate June 11, 1998 (Treaty Doc. 105-50,
105th Congress, 2d Session);
Reported favorably by the Senate Committee on Foreign Relations
October 14, 1998 (Senate Executive Report No. 105-23,
105th Congress, 2d Session);
Advice and consent to ratification by the Senate
October 21, 1998;
Ratified by the President January 20, 1999;
Ratified by Austria August 11, 1998;
Ratifications exchanged at Washington October 27, 1999;
Entered into force January 1, 2000.

EXTRADITION TREATY
BETWEEN THE GOVERNMENT OF THE
UNITED STATES OF AMERICA
AND THE GOVERNMENT OF THE
REPUBLIC OF AUSTRIA
The Government of the United States of America and the Government of the
Republic of Austria,
Recalling the Convention between Austria and the United States of America
for the extradition of fugitives from justice, and exchange of notes concerning the
death penalty, signed at Vienna, January 31, 1930, and the Supplementary
Convention thereto signed at Vienna, May 19, 1934;
Noting that both the United States of America and the Republic of Austria
currently apply the terms of that Treaty;
Desiring to provide for more effective cooperation between the two States in
the suppression of crime and, for that purpose, to conclude a new Treaty for the
extradition of offenders;
Have agreed as follows:
ARTICLE 1
OBLIGATION TO EXTRADITE
The Contracting Parties agree to extradite to each other, pursuant to the
provisions of this Treaty, persons whom the authorities in the Requesting State have
charged with or found guilty of an extraditable offense.
ARTICLE 2
EXTRADITABLE OFFENSES
1. Extradition shall be granted for offenses which are subject under the laws in
both Contracting Parties by deprivation of liberty for a period of more than one year
or by a more severe penalty.
2. Extradition for the enforcement of a prison sentence or a preventive
measure restricting liberty ordered by a criminal court for one or more of the
offenses referred to in paragraph 1 shall be granted only if at least three months of
the sentence or a preventive measure remain to be served.
3. If extradition has been granted pursuant to paragraph 1 or 2, it shall also be
granted for any other offenses even if the time conditions established in those para-
graphs do not apply, provided that all other requirements for extradition are met.
4. For the purposes of this article, extradition shall be granted:
(A) whether or not the laws in the Contracting States 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 Contracting
States 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; and
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(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.
5. Subject to the conditions set out in paragraph 1, an offense shall also be an
extraditable offense if it consists of an attempt or a conspiracy to commit, or
participation in the commission of, an offense.
6. Extradition shall be granted for an extraditable offense regardless of where
the act or acts constituting the offense were committed.
ARTICLE 3
NATIONALITY
1. Neither Party shall be bound to extradite its own nationals, but the
executive authority of the Requested State shall have the power to extradite such
persons if, in its discretion, it be deemed proper to do so and provided the law of the
Requested State does not so preclude.
2. If extradition is refused solely on the basis of the nationality of the person
sought, the Requested State shall, at the request of the Requesting State, submit the
case to its authorities for prosecution.
ARTICLE 4
POLITICAL AND MILITARY OFFENSES
1. Extradition shall not be granted if the offense for which extradition is
requested is a political offense.
2. For the purposes of this Treaty, the following offenses 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 Contracting States, or of a member of the Head of State's family; and
(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.
3. Extradition shall not be granted if the executive authority of the Requested
State determines that the request was politically motivated.
4. The Requested State may refuse extradition for offenses under military law
which are not offenses under ordinary criminal law.
ARTICLE 5
JURISDICTION OF THE REQUESTED STATE
1. Extradition may be refused if the person sought is proceeded against in the
Requested State for the offense for which extradition is requested.
2. Notwithstanding paragraph 1, extradition may be granted if the competent
authorities of the Requested Stated have decided not to prosecute the person sought
NOTE: Text of Article 2, paragraph 6 should read "Extradition may be granted for an
extraditable offense regardless of where the act or acts constituting the offense were
committed."
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for the offense for which extradition is requested or decided to discontinue any
criminal proceedings which have been initiated against the person for those acts.
ARTICLE 6
NON BIS IN IDEM
1. Extradition shall not be granted when the person sought 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.
2. An acquittal or a discharge for lack of jurisdiction is not an obstacle to
extradition.
ARTICLE 7
LAPSE OF TIME
Extradition shall not be granted if the prosecution or the carrying out of the
sentence has become barred by lapse of time under the laws of the Requesting State.
ARTICLE 8
CAPITAL PUNISHMENT
1. When the offense for which extradition is sought is punishable by death
under the laws in the Requesting State and is not punishable by death under the laws
in the Requested State, the Requested State may refuse extradition unless the
Requesting State provides an assurance that the death penalty will not be imposed
(in the case of a person sought for trial) or carried out (in the case of a person already
sentenced to death at the time extradition is requested).
2. In instances in which a Requesting State provides an assurance in
accordance with paragraph 1 of this Article, the Requested State shall grant
extradition, and the Requesting State shall fully comply with the assurance.
ARTICLE 9
CONVICTIONS IN ABSENTIA
If the person sought has been found guilty in absentia, the executive authority
of the Requested State may refuse extradition unless the Requesting State provides it
with such information or assurances as the Requested State considers sufficient to
demonstrate that the person was afforded an adequate opportunity to present a
defense or that there are adequate remedies or additional proceedings available to
the person after surrender.
ARTICLE 10
EXTRADITION PROCEDURES AND REQUIRED DOCUMENTS
1. All requests for extradition shall be submitted through the diplomatic
channel.
2. The request for extradition shall be supported by:
(A) documents, statements, or other types of information which describe
the identity, the nationality and probable location of the person sought;
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(B) information describing the facts of the offense and the procedural
history of the case;
(C) the text of the law describing the essential elements of the offense for
which extradition is requested;
(D) the text of the law prescribing the punishment for the offense;
(E) a statement of the provisions of law describing any time limit on the
prosecution; and
(F) the documents, statements, or other types of information specified in
paragraph 3 or 4 of this article, as applicable.
3. A request for extradition of a person who is sought for prosecution shall 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) documents setting forth sufficient information to provide a reasonable
basis to believe that the person to be extradited committed the offense for which
extradition is requested and is the person named in the warrant of arrest.
4. A request for extradition relating to a person who has been found guilty of
the offense for which extradition is sought shall be supported by:
(A) a copy of the judgment of conviction or, if such copy is not available, a
statement by a judicial authority that the person has been found guilty;
(B) information establishing that the person sought is the person to whom
the finding of guilt refers; and
(C) a copy of the sentence imposed, if the person sought has been sen-
tenced, and a statement establishing to what extent the sentence has been carried out.
5. Documents transmitted through the diplomatic channel shall be admissible
in extradition proceedings in the Requested State without further certification,
authentication, or other legalization.
ARTICLE 11
SUPPLEMENTARY INFORMATION
1. If, at any stage of the extradition proceedings, the Requested State
considers that the information furnished in support of the request for the extradition
of a person is not sufficient to fulfill the requirements for extradition, that state may
request the necessary supplementary information and may fix a reasonable time limit
for the receipt thereof.
2. If the supplementary information furnished is not sufficient or is not
received within the time specified, and if, as a consequence, the person sought is
discharged, such discharge shall not preclude the Requesting State from making a
new request for the extradition of the person sought.
3. Where the person sought is discharged from custody, the Requested State
shall notify the Requesting State as soon as practicable.
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ARTICLE 12
TRANSLATION
Unless otherwise agreed as appropriate in a specific case, all documents shall
be translated by the Requesting State into the language of the Requested State.
Translation need not be certified.
ARTICLE 13
PROVISIONAL ARREST
1. In case of urgency, a Contracting State may request the provisional arrest of
the person sought pending presentation of the request for extradition. A request for
provisional arrest may be transmitted through the diplomatic channel or directly
between he United States Department of Justice and the Ministry of Justice of
Austria. The facilities of the International Criminal Police Organization (Interpol)
may be used to transmit such a request.
2. The application for provisional arrest shall contain:
(A) a description of the person sought and information concerning the
person's nationality;
(B) the location of the person sought if known;
(C) a brief statement of the facts of the case, including, if possible, the time
and location of the offense;
(D) a description of the laws violated and the applicable penalty;
(E) a statement of the existence of a warrant of arrest or finding of guilt or
judgment of conviction against the person sought; and
(F) a statement that a request for extradition for the person sought will
follow.
3. The Requesting State shall be notified without delay of the extent to which
its request has been complied with.
4. A person who is provisionally arrested may be discharged from custody
upon the expiration of sixty (60) days from the date of arrest pursuant to the
application of the Requesting State if the executive authority of the Requested State
has not received the formal request for extradition and the supporting documents
required in Article 10.
5. Termination of provisional arrest pending extradition pursuant to
paragraph 4 is not an obstacle to rearrest and extradition if the extradition request is
received later.
ARTICLE 14
DECISION AND SURRENDER
1. The Requested State shall promptly notify the Requesting State of its
decision on the request for extradition. If the request is denied in whole or in part,
the Requested State shall provide an explanation of the reasons for the denial.
2. If the request for extradition is granted, the authorities of the Contracting
Parties shall decide on the time and place for the surrender of the person sought. The
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Requested State shall make known for what period the person sought was in custody
pending extradition.
3. If the person sought is not removed from the territory of the Requested
State within the time prescribed by the law of that State or, if the Requested State has
no such law, within a reasonable period of time to be determined by the Requested
State, that person may be discharged from custody. In such cases the Requested
State may subsequently refuse extradition for the same offense.
4. If circumstances beyond its control prevent a Contracting Party from timely
surrendering or taking delivery of the person to be extradited, it shall notify the other
Contracting Party before the expiration of the time limit. In such a case, the
competent authorities of the Contracting Parties may decide upon a new date for the
surrender.
ARTICLE 15
POSTPONED AND TEMPORARY SURRENDER
1. If the extradition request is granted in the case of a person who is being
proceeded against or is serving a sentence in the Requested State, the Requested
State may postpone the surrender of the person sought. The postponement may
continue until the prosecution of the person has been concluded and any sentence
has been served.
2. In such cases, the Requested State may also temporarily surrender the
person sought to the Requesting State for the purpose of prosecution. The person so
surrendered shall be kept in custody in the Requesting State and shall be returned to
the Requested State after the conclusion of the proceedings against that person, in
accordance with conditions to be determined by agreement of the Contracting States.
The time spent in custody in the territory of the Requesting State shall be counted
toward the penalty imposed or to be imposed in the Requested State.
ARTICLE 16
DEFERRAL OF EXTRADITION PROCEEDINGS
In the case of a person who is being prosecuted in the Requested State, that
state may defer the extradition proceedings until the prosecution has been concluded.
ARTICLE 17
REQUESTS FOR EXTRADITION MADE BY SEVERAL STATES
1. If the Requested State receives requests from the other Contracting State
and from any other state or states for the extradition of the same person, either for
the same offense or for a different offense, the executive authority of the Requested
State shall determine to which State it will surrender the person. In making its
decision, the Requested State shall consider all relevant factors, including but not
limited to:
(A) treaty obligations;
(B) the place where each offense was committed;
(C) the respective interests of the Requesting States;
(D) the gravity of the offenses;
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(E) the possibility of further extradition between the Requesting States;
and
(F) the chronological order in which the requests were received from the
Requesting States.
2. If the requests are based on different offenses and if precedence is given to
the request of a third state, the Requested State may report to what extent it waives
the rule of specialty with respect to possible further extradition.
ARTICLE 18
SEIZURE AND SURRENDER OF PROPERTY
1. To the extent permitted under its law, the Requested State may seize all
articles, documents, and evidence connected with the offense for which extradition is
sought. Such items shall be surrendered to the Requesting State if extradition is
granted. The items mentioned in this article may be surrendered even when
extradition cannot be effected due to the death, disappearance, or escape of the
person sought.
2. The Requested State may condition the surrender of the property upon
satisfactory assurances from the Requesting State that the items 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.
3. The rights of third parties in such property shall be duly respected.
4. When items are surrendered pursuant to this article, restrictive regulations
concerning the import and export of articles and foreign currency shall not apply.
ARTICLE 19
RULE OF SPECIALTY
1. A person extradited under this treaty may not be detained, tried, punished,
or subjected to any other restrictions of his personal liberty in the Requesting State in
relation to an offense, except for:
(A) an offense for which extradition has been granted or an offense based
on the same facts on which extradition was granted, provided such offense is
extraditable or is a lesser included offense; or
(B) an offense committed after the surrender of the person; or
(C) an offense for which the executive authority of the Requested State
consents to the person's detention, trial, punishment, or other restriction of personal
liberty. For this purpose, the Requested State may require the submission of the
documents called for in Article 10 and a legal record of any statements made by the
extradited person in respect of the request for consent. The person extradited may
be detained by the Requesting State for 90 days, or for such longer period of time as
the Requested State may authorize, while the request is being processed.
2. A person extradited under this Treaty may not be extradited to a third state
for an offense committed prior to his surrender unless the surrendering State
consents.
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3. The restrictions set forth in paragraphs 1 and 2 of this article shall not apply
if the extradited person:
(A) leaves the territory of the Requesting State after extradition and
voluntarily returns or is lawfully returned to it; or
(B) does not leave the territory of the Requesting State within 30 days
from the day on which that person is free to leave.
4. The provisions of this Article shall not prevent the Requesting State from
taking measures necessary under its law to effect the deportation of the extradited
person from its territory or to prevent expiration of a right of action through, lapse of
time.
ARTICLE 20
SIMPLIFIED EXTRADITION
If extradition is not obviously precluded by the laws of the Requested State
and if the person sought consents to extradition and surrender without formal
extradition proceedings, the Requested State may surrender the person without
formal proceedings. In this case Article 19 shall not be applicable, and the Requested
State shall so inform the Requesting State.
ARTICLE 21
TRANSIT
1. Either Contracting State may authorize transportation through its territory
of a person who is being extradited to the other State by a third State. A request for
transit shall be made through the diplomatic channel or directly between the United
States Department of Justice and the Ministry of Justice of Austria. The facilities of
the International Criminal Police Organization (INTERPOL) may be used to
transmit such a request. It shall contain a description of the person being transported
and a brief statement of the facts of the case. A person in transit shall be detained in
custody during the period of transit.
2. No authorization is required where air transportation is used by one Con-
tracting State and no landing is scheduled on the territory of the other State. If an
unscheduled landing occurs on the territory of the other Contracting State, that State
may require the request for transit as provided in paragraph 1. That Contracting
State shall detain the person to be transporter' until the request for transit is received
and the transit is effected, so long as the request is received within 96 hours of the
unscheduled landing.
ARTICLE 22
ASSISTANCE AND EXPENSES
1. The appropriate authorities of the Requested State shall advise the
Requesting State and represent its interests by all legal means within their power in
extradition proceedings before the competent judges and officials.
2. The Requesting State shall bear the expenses related to the translation of
documents and the transportation of the person surrendered. The Requested State
shall pay all other expenses incurred in that state by reason of the extradition
proceedings.
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3. Neither state shall make any pecuniary claim against the other state arising
out of the arrest, detention, examination, or surrender of persons sought under this
Treaty.
ARTICLE 23
CONSULTATION
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 in furtherance of maintaining and improving procedures for the
implementation of this Treaty.
ARTICLE 24
APPLICATION
This Treaty shall apply to offenses committed before as well as after it enters
into force.
ARTICLE 25
RATIFICATION AND ENTRY INTO FORCE
1. This Treaty shall be subject to ratification, and the instruments of
ratification shall be exchanged at Washington as soon as possible.
2. This Treaty shall enter into force on the first day of the third month
following the month in which the exchange of the instruments of ratification took
place.
3. Upon the entry into force of this Treaty, the Treaty between the
Government of the United States of America and the Government of Austria for the
extradition of fugitives from justice, and exchange of notes concerning the death
penalty, signed at Vienna on January 31, 1930, and the Supplementary Extradition
Convention between the Government of the United States and the Government of
Austria, signed at Vienna on May 19, 1934, shall cease to have effect. Nevertheless,
the prior Treaty and Supplementary Convention shall apply to any extradition
proceedings in which the extradition documents have already been submitted to the
courts of the Requested State at the time this Treaty enters into force, except that
Article 2 of this Treaty shall be applicable to such proceedings. Articles 15 and 19 of
this Treaty shall apply to persons found extraditable under the prior Treaties.
ARTICLE 26
TERMINATION
Either Contracting State may terminate this Treaty at any time by giving
written notice to the other Contracting State through the diplomatic channel, and the
termination shall be effective six months after the date of the receipt of such notice.
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IN WITNESS WHEREOF, the undersigned, being duly authorized, have signed this
Treaty.
DONE at Washington, in duplicate, this eighth day of January, 1998, in the English
and German languages, both texts being equally authentic.
FOR THE GOVERNMENT OF THE FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA: REPUBLIC OF AUSTRIA:

 

 

 

 



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