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12962 South Korea - Treaty on Extradition


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 12962

 

 

EXTRADITION

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and KOREA

 

Signed at Washington June 9, 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.”


 

 

 

 

KOREA

Extradition

Treaty signed at Washington June 9, 1998;
Transmitted by the President of the United States of America
to the Senate March 2, 1999 (Treaty Doc. 106-2,
106th Congress, 1st Session);
Reported favorably by the Senate Committee on Foreign Relations
November 3, 1999 (Senate Executive Report No. 106-13,
106th Congress, 1st Session);
Advice and consent to ratification by the Senate
November 5, 1999;
Ratified by the President December 9, 1999;
Ratified by Korea November 25, 1999;
Ratifications exchanged at Seoul December 20, 1999;
Entered into force December 20, 1999.

EXTRADITION TREATY
BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE REPUBLIC OF KOREA
TABLE OF CONTENTS
Article 1 Obligation to Extradite
Article 2 Extraditable Offenses
Article 3 Nationality
Article 4 Political and Military Offenses
Article 5 Prior Prosecution
Article 6 Lapse of Time
Article 7 Capital Punishment
Article 8 Extradition Procedures and Required
Documents
Article 9 Admissibility of Documents
Article 10 Provisional Arrest
Article 11 Decision and Surrender
Article 12 Temporary and Deferred Surrender
Article 13 Requests for Extradition Made by
Several States
Article 14 Seizure and Surrender of Property
Article 15 Rule of Speciality
Article 16 Simplified Extradition
Article 17 Transit
Article 18 Representation and Expenses
Article 19 Consultation
Article 20 Application
Article 21 Ratification, Entry into Force and
Termination
The Government of the United States of America and the Government of the
Republic of Korea,
Desiring to provide for more effective cooperation between the two states in the
prevention and suppression of crime, and to facilitate relations between the two States in
the area of extradition by concluding a treaty for the extradition of offenders,
Have agreed as follows:
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ARTICLE 1
OBLIGATION TO EXTRADITE
The Contracting States agree to extradite to each other, pursuant to the provisions
of this Treaty, any person who is wanted in the Requesting State for prosecution, trial, or
imposition or execution of punishment for an extraditable offense.
ARTICLE 2
EXTRADITABLE OFFENSES
1. An offense shall be an extraditable offense if, at the time of the request, it is
punishable under the laws in both Contracting States by deprivation of liberty for a
period of more than one year, or by a more severe penalty.
2. 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 described in
paragraph 1, provided that the requirements of paragraph 1 are fulfilled.
3. For the purposes of this Article, the totality of the conduct alleged against
the person whose extradition is sought shall be taken into account, and an offense shall be
an extraditable offense:
(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) whether or not the constituent elements of the offense differ under
the laws in the Contracting States, provided that the offenses
under the laws of both States are substantially analogous; and
(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.
4. If the offense was committed outside of the territory of the Requesting
State, extradition shall be granted in accordance with this Treaty if the laws of the
Requested State provide for punishment of an offense committed outside of its territory in
similar circumstances or if the offense has been committed by a national of the
Requesting State. If the laws in the Requested State do not so provide, the executive
authority of the Requested State may, in its discretion, grant extradition, provided that
the requirements of this Treaty are met. Extradition may be refused when the offense for
which extradition is sought is regarded under the law of the Requested State as having
been committed in whole or in part in its territory and a prosecution in respect of that
offense is pending in the Requested State.
5. If extradition has been granted for an extraditable offense, it shall also be
granted for any other offense specified in the request even if the latter offense is
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punishable by deprivation of liberty for a period of one year or less, provided that all
other requirements for extradition are met.
6. When extradition of a person is sought for an offense against a law relating
to taxation, customs duties, foreign exchange control, or other revenue matter, extradition
may not be refused on the ground that the law of the Requested State does not contain a
tax, duty, customs, or exchange regulation of the same kind as the law of the Requesting
State.
7. Where the request for extradition relates to a person sentenced to
deprivation of liberty by a court of the Requesting State for any extraditable offense,
extradition may be denied if a period of less than four months remains to be served.
ARTICLE 3
NATIONALITY
1. Neither Contracting State shall be bound to extradite its own nationals, but
the Requested State shall have the power to extradite such person if, in its discretion, it be
deemed proper to do so.
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.
3. Nationality shall be determined at the time of the commission of the offense
for which extradition is requested.
ARTICLE 4
POLITICAL AND MILITARY OFFENSES
1. Extradition shall not be granted if the Requested State determines that 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) a murder or other willful violent 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;
(b) an offense for which both Contracting States have the obligation
to extradite the person sought or to submit the case to their
competent authorities for decision as to prosecution pursuant to a
multilateral international agreement, including but not limited to
such agreements relating to genocide, terrorism, or kidnapping; and
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(c) a conspiracy or attempt to commit, or participation in, any of the
foregoing offenses.
3. Surrender shall not be granted if the executive authority of the Requested
State determines:
(a) that the request for surrender, though purporting to be made on
account of an offense for which surrender may be granted, was in
fact made for the primary purpose of prosecuting or punishing the
person sought on account of his race, religion, nationality or
political opinion; or
(b) that extradition has been requested for political purposes.
4. The executive authority of the Requested State may refuse extradition for
offenses under military law which are not offenses under ordinary criminal law.
ARTICLE 5
PRIOR PROSECUTION
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.
ARTICLE 6
LAPSE OF TIME
Extradition may be denied under this Treaty when the prosecution or the
execution of punishment of the offense for which extradition is requested would have been
barred because of the statute of limitations of the Requested State had the same offense
been committed in the Requested State. The period during which a person for whom
extradition is sought fled from justice does not count towards the running of the statute of
limitations. Acts or circumstances that would suspend the expiration of the statute of
limitations of either State shall be given effect by the Requested State, and in this regard
the Requesting State shall provide a written statement of the relevant provisions of its
statute of limitations, which shall be conclusive.
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ARTICLE 7
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:
(a) the offense constitutes murder under the laws in the Requested
State; or
(b) the Requesting State provides such assurances as the Requested
State considers sufficient that the death penalty will not be imposed
or, if imposed, will not be carried out.
2. In instances in which a Requesting State provides an assurance in
accordance with paragraph 1, the death penalty, if imposed by the courts of the
Requesting State, shall not be carried out.
ARTICLE 8
EXTRADITION PROCEDURES AND REQUIRED DOCUMENTS
1. All requests for extradition shall be submitted in writing through the
diplomatic channel.
2. All requests shall be supported by:
(a) documents, statements, or other types of information which describe
the identity, including nationality, and probable location of the
person sought;
(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 punishment for the offense;
(e) the documents, statements, or other types of information specified in
paragraph 3 or paragraph 4 of this Article, as applicable; and
(f) a statement of the relevant provisions of its statute of limitations on
the prosecution or the execution of punishment of the offense.
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3. A request for extradition of a person who is sought for prosecution shall
also 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 reasonable grounds to believe
that the person sought has committed the offense for which
extradition is requested.
4. A request for extradition relating to a person who has been found guilty of
the offense for which extradition is sought shall also 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;
(c) a copy of the sentence imposed, if the person sought has been
sentenced, and a statement establishing to what extent the
sentence has been carried out; and
(d) in the case of a person who has been found guilty in absentia, the
documents required by paragraph 3.
5. If the Requested State considers that the information furnished in support
of the request is not sufficient to fulfill the requirements of this Treaty, that State may
request that additional information be furnished within such reasonable time as it
specifies.
6. All documents submitted by the Requesting State shall be translated into
the language of the Requested State.
ARTICLE 9
ADMISSIBILITY OF DOCUMENTS
The documents which accompany an extradition request shall be received and
admitted as evidence in the extradition proceedings if:
(a) they are certified by the principal diplomatic or consular officer of
the Requested State resident in the Requesting State; or
(b) they are certified or authenticated in any other manner accepted by
the law of the Requested State.
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ARTICLE 10
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
the Department of Justice in the United States and the Ministry of Justice in the Republic
of Korea.
2. The application for provisional arrest shall be in writing and contain:
(a) a description of the person sought, including 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;
(e) a statement of the existence of a warrant of arrest or a 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 disposition of its
application and the reasons for any denial.
4. A person who is provisionally arrested may be discharged from custody
upon the expiration of two months from the date of provisional arrest pursuant to this
Treaty if the executive authority of the Requested State has not received the formal
request for extradition and the supporting documents required in Article 8.
5. The fact that the person sought has been discharged from custody pursuant
to paragraph 4 of this Article shall not prejudice the subsequent rearrest and extradition
of that person if the extradition request and supporting documents are delivered at a later
date.
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ARTICLE 11
DECISION AND SURRENDER
1. The Requested State shall promptly notify the Requesting State, in writing
through the diplomatic channel, of its decision on the request for extradition.
2. If the request is denied in whole or in part, the Requested State shall
provide an explanation of the reasons for the denial. In cases in which decisions are
made by judicial authorities, the Requested State shall, upon request, provide copies of
pertinent judicial decisions.
3. If the request for extradition is granted, the authorities of the Contracting
States shall agree on the time and place for the surrender of the person sought.
4. If the person sought is not removed from the territory of the Requested
State within the time prescribed by the law of that State, that person may be discharged
from custody, and the Requested State may subsequently refuse extradition for the same
offense.
ARTICLE 12
TEMPORARY AND DEFERRED 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 for an offense other than
that for which extradition is requested, the Requested State may 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 mutual agreement of the Contracting States.
2. The Requested State may postpone the extradition proceedings against a
person who is serving a sentence in that State for an offense other than that for which
extradition is requested or who is being prosecuted in that State. The postponement may
continue until the prosecution of the person sought has been concluded or until such
person has served any sentence imposed.
ARTICLE 13
REQUESTS FOR EXTRADITION MADE BY SEVERAL STATES
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 different offenses, the executive authority of the Requested State shall
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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) whether the requests were made pursuant to treaty;
(b) the time and place where each offense was committed;
(c) the respective interests of the Requesting States;
(d) the gravity of the offenses;
(e) the nationality of the victim;
(f) the possibility of further extradition between the Requesting
States; and
(g) the respective dates of the requests.
ARTICLE 14
SEIZURE AND SURRENDER OF PROPERTY
1. To the extent permitted under its law, the Requested State may seize and
surrender to the Requesting State all articles, documents, and evidence connected with
the offense in respect of which extradition is granted. The items mentioned in this Article
may be surrendered even when the 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 property will be returned free
of charge to the Requested State as soon as practicable. The Requested State may also
defer the surrender of such property if it is needed as evidence in the Requested State.
3. The rights of third parties in such property shall be duly respected.
ARTICLE 15
RULE OF SPECIALITY
1. A person extradited under this Treaty may not be detained, tried, or
punished in the Requesting State except for:
(a) the offense for which extradition has been granted or a differently
denominated offense based on the same facts on which extradition
was granted, provided such offense is extraditable, or is a lesser
included offense;
(b) an offense committed after the extradition of the person; or
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(c) an offense for which the executive authority of the Requested State
consents to the person's detention, trial, or punishment for an
offense;
For the purpose of this subparagraph:
(i)
the Requested State may require the submission of the
documents called for in Article 8;
(ii) a legal record of statements made by the extradited person
with respect to the offense, if any, shall be submitted to the
Requested State; and
(iii) the person extradited may be detained by the Requesting
State for such 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.
3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or
punishment of an extradited person, or the extradition of that person to a third State, if:
(a) that person leaves the territory of the Requesting State after
extradition and voluntarily returns to it; or
(b) that person does not leave the territory of the Requesting State
within 25 days of the day on which that person is free to leave.
ARTICLE 16
SIMPLIFIED EXTRADITION
If the person sought consents to surrender to the Requesting State, the Requested
State may surrender the person as expeditiously as possible without further proceedings,
to the extent permitted under its law. In such cases, Article 15 of this Treaty shall not
apply.
ARTICLE 17
TRANSIT
I. Either Contracting State may authorize transportation through its territory
of a person surrendered to the other State by a third State. A request for transit shall be
transmitted through the diplomatic channel or directly between the Department of Justice
in the United States and the Ministry of Justice in the Republic of Korea. It shall contain
a description of the person being transported and a brief statement of the facts of the case.
A person in transit may be detained in custody during the period of transit.
2. Authorization to transit shall not be required when air transport is used
and no landing is scheduled in the territory of the State of transit. If an unscheduled
landing occurs in the territory of that party, it may require the other party to furnish a
request for transit as provided in paragraph 1 of this Article. The State of transit shall
detain the person to be transported until the transportation is continued provided that the
request is received within ninety-six (96) hours of the unscheduled landing.
3. Permission for the transit of a person surrendered shall include
authorization for accompanying officials to obtain assistance from authorities in the State
of transit in maintaining custody.
4. Where a person is being held in custody pursuant to paragraph 3 of this
Article, the Contracting State in whose territory the person is being held may direct that
the person be released if transportation is not continued within a reasonable time.
ARTICLE 18
REPRESENTATION AND EXPENSES
1. The Requested State shall advise, assist, appear in court on behalf of the
Requesting State, and represent the interests of the Requesting State, in any proceedings
arising out of a request for extradition.
2. The Requesting State shall bear the expenses related to the translation of
documents and the transportation of the person surrendered from the Requested State to
the Requesting State. The Requested State shall pay all other expenses incurred in that
State by reason of the extradition proceedings.
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 19
CONSULTATION
1. The Contracting States shall consult, at the request of either, concerning the
interpretation and the application of this Treaty.
2. The United States Department of Justice and the Republic of Korea
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 this Treaty.
ARTICLE 20
APPLICATION
This Treaty shall apply to offenses committed before as well as after the date it
enters into force.
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ARTICLE 21
RATIFICATION, ENTRY INTO FORCE AND TERMINATION
1. This Treaty shall be subject to ratification; the instruments of ratification
shall be exchanged as soon as possible.
2. This Treaty shall enter into force upon the exchange of the instruments of
ratification.
3. Either Contracting State may terminate this Treaty at any time by giving
written notice to the other Contracting State, and the termination shall be effective six
months after the date of such notice.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their
respective Governments have signed this Treaty.
DONE at Washington, in duplicate, this 9th day of June, 1998, in the
English and Korean languages, both texts being equally authentic.
FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA:

FOR THE GOVERNMENT OF THE
REPUBLIC OF KOREA:

 

 



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