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13060 South Africa - Treaty on Extradition


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13060

 

 

EXTRADITION

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and SOUTH AFRICA

 

Signed at Washington September 16, 1999

 

 

 

 

 


 

 


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.”


 

 

 

 

SOUTH AFRICA

Extradition

Treaty signed at Washington September 16, 1999;
Transmitted by the President of the United States of America
to the Senate May 18, 2000 (Treaty Doc. 106-24,
106th Congress, 2d Session);
Reported favorably by the Senate Committee on Foreign Relations
September 27, 2000 (Senate Executive Report No. 106-26,
106th Congress, 2d Session);
Advice and consent to ratification by the Senate
October 18, 2000;
Ratified by the President December 23, 2000;
Ratified by South Africa March 28, 2001;
Ratifications exchanged at Pretoria June 25, 2001;
Entered into force June 25, 2001.

EXTRADITION TREATY
BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
TABLE OF CONTENTS
Article 1 Obligation to Extradite
Article 2 Extraditable Offences
Article 3 Nationality
Article 4 Political and Military Offences
Article 5 Capital Punishment
Article 6 Non Bis in Idem
Article 7 Temporary and Deferred Surrender
Article 8 Lapse of Time
Article 9 Extradition Procedures and Required Documents
Article 10 Admissibility of Documents
Article 11 Translation
Article 12 Additional Information
Article 13 Provisional Arrest
Article 14 Decision and Surrender
Article 15 Concurrent Requests
Article 16 Seizure and Surrender of Property
Article 17 Rule of Specialty
Article 18 Surrender to a Third State or an International Tribunal
Article 19 Waiver
Article 20 Transit
Article 21 Representation and Expenses
Article 22 Consultation
Article 23 Application
Article 24 Ratification, Entry into Force, and Termination
Annex
The Government of the United States of America and the Government of the
Republic of South Africa;
Recalling the Treaty Relating to the Reciprocal Extradition of Criminals, signed at
Washington December 18, 1947,
Noting that both the Government of the United States of America and the
Government of the Republic of South Africa currently apply the terms of that Treaty, and
Desiring to provide for more effective cooperation between the two States in the fight
against crime, and, for that purpose, to conclude a new treaty for the extradition of
offenders;
Hereby agree as follows:
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Article 1
Obligation to Extradite
The 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
convicted of an extraditable offence.
Article 2
Extraditable Offences
1. An offence shall be an extraditable offence if it is punishable under the laws
in both States by deprivation of liberty for a period of at least one year or by a more severe
penalty.
2. An offence shall also be an extraditable offence if it consists of attempting or
conspiring to commit, or aiding, abetting, inducing, counseling or procuring the commission
of, or being an accessory before or after the fact to, any offence described in sub-article 1.
3. For the purposes of this Article, an offence shall be an extraditable offence
whether or not the:
(a) laws in the Requesting and Requested States place the offence within
the same category of offences or describe the offence by the same
terminology; or
(b) offence 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 an offence has been committed outside the territory of the Requesting
State, extradition shall be granted where the laws in the Requested State provide for the
punishment of an offence committed outside its territory in similar circumstances. Where
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the laws in the Requested State do not so provide, the executive authority of the Requested
State may, in its discretion, grant extradition.
5. Extradition shall also be granted in respect of a person convicted of but not
yet sentenced, or convicted of and sentenced for an offence as contemplated in this Article,
for the purpose of sentence, or for enforcing such sentence or the remaining portion thereof,
as the case may be.
6. Where extradition of a person is sought for an offence against a law relating
to taxation, customs duties, exchange control, or other revenue matters, extradition may not
be refused on the ground that the law of the Requested State does not impose the same kind
of tax or duty or does not contain a tax, customs duty, or exchange regulation of the same
kind as the law of the Requesting State.
7. If the request for extradition relates to more than one offence and extradition
is granted for an extraditable offence, it shall also be granted for any other offence specified
in the request even if the latter offence is punishable by one year's deprivation of liberty or
less, provided that all other requirements for extradition are met.
Article 3
Nationality
Extradition shall not be refused on the ground of the nationality of the person sought.
Article 4
Political and Military Offences
1. Extradition shall not be granted if the offence for which extradition is
requested is a political offence.
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2. For the purposes of this Treaty, the following offences shall not be considered
political offences:
(a) a murder or other violent crime against a Head of State or Deputy
Head of State of the Requesting or Requested State, or of or against a
member of such person's family;
an offence for which both the Requesting and Requested States have
the obligation pursuant to a multilateral international agreement to
extradite the person sought or to submit the case to their respective
competent authorities for decision as to prosecution;
murder;
an offence involving kidnapping, abduction, or any form of unlawful
detention, including the taking of a hostage; and
(e) attempting or conspiring to commit, aiding, abetting, inducing,
counseling or procuring the commission of, or being an accessory
before or after the fact to such offences.
3. Notwithstanding the terms of sub-article 2, extradition shall not be granted if
the executive authority of the Requested State determines that there are substantial grounds
for believing that the request has been made for the purpose of prosecuting or punishing a
person on account of that person's gender, race, religion, nationality, or political opinion.
4. The executive authority of the Requested State shall refuse extradition for
offences under military law that are not offences under ordinary criminal law.
Article 5
Capital Punishment
1. When the offence 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 assurances that the death penalty will not be imposed, or if imposed, will not be
carried out.
(b)
(c)
(d)
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2. In instances in which a Requesting State provides an assurance in
accordance with this Article, the death penalty, if imposed by the courts of the Requesting
State, shall not be carried out.
Article 6
Non Bis in Idem
1. Extradition shall not be granted when the person sought has been convicted
or acquitted in the Requested State of the offence for which extradition is requested.
2. Extradition shall not be precluded by the fact that the competent authorities
of the Requested State have decided either:
(a) not to prosecute the person sought for the acts or omissions for which
extradition is requested;
(b) to discontinue any criminal proceedings which have been instituted
against the person sought for those acts or omissions, provided that
such discontinuance does not have the effect of acquittal: or
(c) to investigate the person sought for the same acts or omissions.
Article 7
Temporary and Deferred Surrender
1. The Requested State may postpone the extradition proceedings against a
person who is being prosecuted or who is serving a sentence in that State until such
prosecution has been concluded or any such sentence has been served.
2. If the extradition request is granted in the case of a person who is being
prosecuted or is serving a sentence in the Requested State, that 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
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person, in accordance with conditions to be determined by mutual agreement between the
Requesting and Requested States.
Article 8
Lapse of Time
Extradition shall not be granted when the prosecution has become barred by lapse of
time according to the laws in the Requesting State.
Article 9
Extradition Procedures and Required Documents
1. All requests for extradition shall be made in writing and shall be submitted
through the diplomatic channel.
2. All requests shall be supported by:
(a) information describing the facts of the offence(s) and the procedural
history of the case;
(b) a statement or text of the law, if any, creating or relating to the
offence(s) for which the extradition is requested;
(c) a statement or text of the relevant law prescribing maximum
punishment for the offence(s);
(d) a statement or text of the law relating to lapse of time which shall be
conclusive;
(e) as accurate a description as possible of the person sought together
with any other information which may help to establish that person's
identity or nationality and probable location; and
(f) the documents, statements, or other information specified in
sub-article 3 or 4, as the case may be.
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3. In addition to the information, statements or documents referred to in
sub-article 2, 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, if any, issued by a judge or
other competent authority;
(b) a copy of the indictment, charge sheet, or other charging document;
and
(c) such information as would justify committal for extradition under the
laws of the Requested State, but neither State is required to establish a
prima facie case.
4. In addition to the information, statements or documents referred to in sub-
article 2, a request relating to a person who has been convicted of the offence for which
extradition is sought shall also be supported by:
(a) a copy of the judgment of conviction, or, if a copy is not available, a
statement by a judicial officer or other competent authority that the
person has been convicted or a copy of any record of conviction that
reflects the charge and the conviction;
(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 convicted in absentia, the
documents required by sub-article 3.
Article 10
Admissibility of Documents
Any document referred to in Article 9 shall be received in evidence in any
proceedings for extradition if:
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1. In the case of a request from the United States, such document is:
(a) accompanied by a certificate according to the example set out in the
Annex to this Treaty; or
(b) authenticated by the signature and seal of office of:
(i) the head of a South African diplomatic or consular mission or
a person in the administrative or professional division of the
public service serving at a South African diplomatic, consular,
or trade office in the United States of America or a South
African foreign service officer grade VII or an honorary South
African consul general, vice-consul or trade commissioner; or
(ii) any government authority of the United States of America
charged with the authentication of documents in terms of its
domestic law; or
(iii) any notary public or other person in the United States of
America who shall be shown by a certificate of any person
referred to in subparagraphs (i) or (ii) or of any diplomatic or
consular officer of the United States of America in the Republic
of South Africa to be duly authorized to authenticate such
document in terms of the domestic law of the United States of
America
2. In the case of a request from the Republic of South Africa, such document is
certified by the principal diplomatic or principal consular officer of the United States
resident in the Republic of South Africa, as provided by the extradition laws of the
United States; or
3. Such document is certified or authenticated in any other manner acceptable
by the laws in the Requested State.
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Article 11
Translation
Any document produced in relation to extradition proceedings in terms of this
Treaty which is not in English shall be accompanied by a translation in English.
Article 12
Additional Information
1. If the executive authority of the Requested State considers that the
information furnished in support of the request for extradition is not sufficient to enable the
request for extradition to be granted, it shall notify the Requesting State in order to enable
that State to furnish additional information.
2. The executive authority may fix a reasonable time limit for such information
to be furnished.
3. Nothing shall prevent the executive authority of the Requested State from
presenting to a court of that State information sought or obtained after submission of the
request to the Court or after expiration of the time stipulated pursuant to sub-article 2.
Article 13
Provisional Arrest
1. In case of urgency, the Requesting State may, for the purpose of extradition,
request the provisional arrest of the person sought pending presentation of the documents
in support of the extradition request. A request for provisional arrest may be transmitted
through the diplomatic channel or directly between the United States Department of Justice
and the Republic of South Africa Department of Justice. The facilities of the International
Criminal Police Organization (INTERPOL) also may be used to transmit such a request.
The application may also be transmitted by post, telegraph, telefax, or any other means
affording a record in writing.
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2. The application for provisional arrest shall contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a description of the offence(s);
(d) a concise statement of the acts or omissions alleged to constitute the
offence(s);
(e) a description of the punishment that can be imposed or has been
imposed for the offence(s);
(f) a statement that a document referred to in Article 9(3)(a) or Article
9(4)(a), as the case may be, exists; and
(g) a statement that the documents supporting the extradition request for
the person sought will follow within the time specified in this Treaty.
3. Prompt attention shall be given to such application and the Requesting State
shall be notified as soon as possible of the decision regarding its application for provisional
arrest and, if applicable, the reasons for any inability to proceed with the application.
4. A person who is provisionally arrested may be discharged from custody upon
the expiration of sixty (60) days from the date of provisional arrest pursuant to this Treaty if
the executive authority of the Requested State has not received the documents required in
Article 9. For this purpose, receipt of said documents by the Embassy of the Requested
State in the Requesting State shall constitute receipt by the executive authority of the
Requested State.
5. The release from custody of a person pursuant to sub-article 4 shall not
prejudice the subsequent re-arrest and extradition of that person if the documents required
in Article 9 are delivered at a later date.
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Article 14
Decision and Surrender
1. The Requested State shall promptly notify the Requesting State of its decision
on the request for extradition.
2. Reasons shall be given by the Requested State for any complete or partial
refusal of a request for extradition. The Requested State shall provide copies of pertinent
judicial decisions upon request.
3. If the request for extradition is granted, the relevant authorities of the
Requesting and Requested States shall agree on the date 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 period prescribed by the law of that State, that person may be discharged
from custody, and the Requested State, in its discretion, may subsequently refuse
extradition for the same offence.
5. If circumstances beyond its control prevent either the Requesting State or the
Requested State from respectively surrendering or receiving the person sought, the State so
prevented shall notify the other accordingly and seek to agree on a new date for such
surrender.
Article 15
Concurrent Requests
1. Where requests are received from two or more States for the extradition of
the same person, either for the same offence or for different offences, the executive authority
of the Requested State shall determine to which of those States, if any, the person is to be
extradited and shall notify the Requesting State of its decision.
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2. In determining to which State the person is to be extradited, the Requested
State shall consider all relevant factors, including but not limited to:
(a) whether the requests were made pursuant to an extradition treaty;
(b) the relative seriousness of the offences, should those requests relate to
different offences;
(c) the time and place of commission of each offence;
(d) the respective dates on which the requests were received from the
respective States;
(e) the interests of the respective States;
(f) the nationality of the victim; and
(g) the possibility of any subsequent extradition between the respective
States.
Article 16
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 property, including articles and documents, that may
be found in the Requested State and that has been acquired as a result of the offence or is
connected thereto or may be required as evidence, if extradition is granted.
2. The property referred to in sub-article 1 may be surrendered to the
Requesting State, if the latter so requests, even if the extradition cannot be carried out due
to the death, disappearance, or escape of the person sought.
3. Where the said property is liable to seizure or confiscation within the
jurisdiction of the Requested State, the latter may, upon satisfactory assurances from the
Requesting State that the property will be returned within a fixed period of time or as soon
as practicable, temporarily surrender that property to the Requesting State. The Requested
State may also defer the surrender of such property if it is required in connection with
pending criminal proceedings in the jurisdiction of the Requested State.
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4. Any rights which the Requested State or third parties may have to such
property shall be duly respected in accordance with the law in the Requested State.
Article 17
Rule of Specialty
1. A person extradited under this Treaty shall not be detained, tried, or
punished in the Requesting State for any offence committed before his or her extradition
other than an offence:
(a) for which extradition was granted or any other extraditable offence of
which the person could be convicted upon proof of the facts upon
which the request for extradition was granted, or is a lesser included
offence;
(b) for which the executive authority of the Requested State consents to
the person's detention, trial, or punishment. For the purpose of this
paragraph:
(i) the Requested State may require the submission of the
documentation referred to in Article 9; and
(ii) the person extradited may be detained by the Requesting State
for sixty (60) days, or for such longer period of time as the
Requested State may authorize, pending the processing of the
request.
2. Sub-article 1 of this Article shall not apply if:
(a) the person extradited leaves the territory of the Requesting State
after extradition and voluntarily returns to it; or
(b) the person extradited has had an opportunity to leave the territory of
the Requesting State and has not done so within fifteen (15) days of
final discharge in respect of the offence for which that person was
extradited.
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Article 18
Surrender to a Third State or an International Tribunal
1. Where a person has been surrendered to the Requesting State by the
Requested State, the Requesting State shall not surrender that person to any third State or
an international tribunal for an offence committed before that person's surrender unless:
(a) the Requested State consents to that surrender; or
(b) the person has had an opportunity to leave the territory of the
Requesting State and has not done so within fifteen (15) days of final
discharge in respect of the offence for which that person was
surrendered by the Requested State or has returned to the territory of
the Requesting State after leaving it.
2. Before acceding to a request pursuant to sub-article 1, the Requested State
may request relevant information.
Article 19
Waiver
If the person sought consents to be surrendered to the Requesting State, the
Requested State may surrender the person as expeditiously as possible without further
proceedings.
Article 20
Transit
1. Either State may authorize transportation through its territory of a person
surrendered to the other State by a third State.
2. A request for transit shall be transmitted through the diplomatic channel or
directly between the United States Department of Justice and the Department of Justice of
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the Republic of South Africa. In cases of urgency, the facilities of the International
Criminal Police Organization (INTERPOL) may also be used to transmit such a request
3. The request for transit shall contain:
(a) a description of the person together with any information that may
help to establish his or her identity and nationality; and
(b) a brief statement of the facts of the case, and a list of the offences for
which the person was surrendered by the third State.
4. Permission for the transit of a person shall, subject to the law of the
Requested State, include permission for the person to be held in custody during transit. If
transportation is not continued within a reasonable time, the executive authority of the State
in whose territory the person is being held may direct that the person be released.
5. Authorization is not required when air transportation is used by one State
and no landing is scheduled on the territory of the other State. If an unscheduled landing
does occur, the State in whose territory such landing occurs may require a request for
transit pursuant to sub-article 2, and it may detain the person until the request for transit is
received and the transit is effected, provided that such request is received within 96 hours of
the unscheduled landing.
Article 21
Representation and Expenses
1. The Requested State shall make all necessary arrangements for and meet the
cost of any proceedings arising out of a request for extradition and shall advise, assist,
appear in court on behalf of, and otherwise represent the interests of the Requesting State.
2. The Requested State shall bear the expenses incurred in its territory or
jurisdiction in the arrest and detention of the person whose extradition is sought until that
person is surrendered to a person nominated by the Requesting State.
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3. The Requesting State shall pay all the expenses incurred in the translation of
extradition documents and in conveying the person from the territory of the Requested
State.
4. Neither State shall make any pecuniary claim against the other State arising
out of the arrest, detention, examination, or surrender of persons under this Treaty.
Article 22
Consultation
The United States Department of Justice and the Department of Justice of the
Republic of South Africa or persons designated by the respective Departments of Justice
may consult with each other directly or through the facilities of the International Criminal
Police Organization (INTERPOL) in connection with the processing of individual cases and
in furtherance of efficient implementation of this Treaty.
Article 23
Application
This Treaty shall apply to any offence contemplated in Article 2, whether committed
before, on, or after the date upon which this Treaty enters into force. Nothing in this treaty
shall be deemed to require or authorize any action by the Requested State that is contrary
to the constitution of that State.
Article 24
Ratification, Entry into Force, and Termination
1. This Treaty shall be subject to ratification, and the instruments of ratification
shall be exchanged as soon as possible.
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2. This Treaty shall enter into force upon the exchange of the instruments of
ratification.
3. Upon the entry into force of this Treaty, the Treaty Relating to the Reciprocal
Extradition of Criminals, signed at Washington December 18, 1947, shall cease to have any
effect. Nevertheless, the prior Treaty 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 19 of this Treaty shall be
applicable to such proceedings. Articles 17 and 18 of this Treaty shall apply to persons
found extraditable under the prior Treaty.
4. Either State may terminate this Treaty at any time by giving written notice to
the other 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 sixteenth day of September, 1999.
FOR THE GOVERNMENT OF THE FOR THE GOVERNMENT OF
UNITED STATES OF AMERICA: THE REPUBLIC OF SOUTH AFRICA:
ANNEX
APPOSTILLE
(Convention de la Haye du 5 Octobre 1961)
1. Country
This public document
2. has been signed by
3. acting in the capacity of
4. bears the seal/stamp of
Certified
5. at
6. the (date)
7. by
8. No.
9. Seal/stamp: 10. Signature:

 

 

 

 



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