United Nations

A/RES/45/116


General Assembly

Distr. GENERAL  

14 December 1990

ORIGINAL:
ENGLISH



                                                    A/RES/45/116
                                                    68th plenary meeting
                                                    14 December 1990
      45/116.   Model Treaty on Extradition
 
      The General Assembly,
 
      Bearing in mind the Milan Plan of Action, adopted by the Seventh United
 Nations Congress on the Prevention of Crime and the Treatment of Offenders and
 approved by the General Assembly in its resolution 40/32 of 29 November 1985,
 
      Bearing in mind also the Guiding Principles for Crime Prevention and
 Criminal Justice in the Context of Development and a New International
 Economic Order, principle 37 of which stipulates that the United Nations
 should prepare model instruments suitable for use as international and
 regional conventions and as guides for national implementing legislation,
 
      Recalling resolution 1 of the Seventh Congress, on organized crime, in
 which Member States were urged, inter alia, to increase their activity at the
 international level in order to combat organized crime, including, as
 appropriate, entering into bilateral treaties on extradition and mutual legal
 assistance,
 
      Recalling also resolution 23 of the Seventh Congress, on criminal acts of
 a terrorist character, in which all States were called upon to take steps to
 strengthen co-operation, inter alia, in the area of extradition,
 
      Calling attention to the United Nations Convention against Illicit
 Traffic in Narcotic Drugs and Psychotropic Substances,
 
      Acknowledging the valuable contributions of Governments, non-governmental
 organizations and individual experts, in particular the Government of
 Australia and the International Association of Penal Law,
 
      Gravely concerned by the escalation of crime, both national and
 transnational,
 
      Convinced that the establishment of bilateral and multilateral
 arrangements for extradition will greatly contribute to the development of
 more effective international co-operation for the control of crime,
 
      Conscious of the need to respect human dignity and recalling the rights
 conferred upon every person involved in criminal proceedings, as embodied in
 the Universal Declaration of Human Rights and the International Covenant on
 Civil and Political Rights,
 
      Conscious that in many cases existing bilateral extradition arrangements
 are outdated and should be replaced by modern arrangements which take into
 account recent developments in international criminal law,
 
      Recognizing the importance of a model treaty on extradition as an
 effective way of dealing with the complex aspects and serious consequences of
 crime, especially in its new forms and dimensions,
 
      1.   Adopts the Model Treaty on Extradition contained in the annex to the
 present resolution as a useful framework that could be of assistance to States
 interested in negotiating and concluding bilateral agreements aimed at
 improving co-operation in matters of crime prevention and criminal justice;
 
      2.   Invites Member States, if they have not yet established treaty
 relations with other States in the area of extradition, or if they wish to
 revise existing treaty relations, to take into account, whenever doing so, the
 Model Treaty on Extradition;
 
      3.   Urges all States to strengthen further international co-operation in
 criminal justice;
 
      4.   Requests the Secretary-General to bring the present resolution, with
 the Model Treaty, to the attention of Member States;
 
      5.   Urges Member States to inform the Secretary-General periodically of
 efforts undertaken to establish extradition arrangements;
 
      6.   Requests the Committee on Crime Prevention and Control to review
 periodically the progress attained in this field;
 
      7.   Also requests the Committee on Crime Prevention and Control, where
 requested, to provide guidance and assistance to Member States in the
 development of legislation that would enable giving effect to the obligations
 in such treaties as are to be negotiated on the basis of the Model Treaty on
 Extradition;
 
      8.   Invites Member States, on request, to make available to the
 Secretary-General the provisions of their extradition legislation so that
 these may be made available to those Member States desiring to enact or
 further develop legislation in this field.
 
 
                                     ANNEX
                          Model Treaty on Extradition
 
      The                               and the
 
      Desirous of making more effective the co-operation of the two countries
 in the control of crime by concluding a treaty on extradition,
 
      Have agreed as follows:
 
                                   ARTICLE 1
                            Obligation to extradite
 
      Each Party agrees to extradite to the other, upon request and subject to
 the provisions of the present Treaty, any person who is wanted in the
 requesting State for prosecution for an extraditable offence or for the
 imposition or enforcement of a sentence in respect of such an offence.
 
                                   ARTICLE 2
                             Extraditable offences
 
 1.   For the purposes of the present Treaty, extraditable offences are
 offences that are punishable under the laws of both Parties by imprisonment or
 other deprivation of liberty for a maximum period of at least  one/two
 year(s), or by a more severe penalty.  Where the request for extradition
 relates to a person who is wanted for the enforcement of a sentence of
 imprisonment or other deprivation of liberty imposed for such an offence,
 extradition shall be granted only if a period of at least  four/six  months of
 such sentence remains to be served.
 
 2.   In determining whether an offence is an offence punishable under the laws
 of both Parties, it shall not matter whether:
 
      (a)  The laws of the Parties place the acts or omissions constituting the
 offence within the same category of offence or denominate the offence by the
 same terminology;
 
      (b)  Under the laws of the Parties the constituent elements of the
 offence differ, it being understood that the totality of the acts or omissions
 as presented by the requesting State shall be taken into account.
 
 3.   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.
 
 4.   If the request for extradition includes several separate offences each of
 which is punishable under the laws of both Parties, but some of which do not
 fulfil the other conditions set out in paragraph 1 of the present article, the
 requested Party may grant extradition for the latter offences provided that
 the person is to be extradited for at least one extraditable offence.
 
                                   ARTICLE 3
                         Mandatory grounds for refusal
 
      Extradition shall not be granted in any of the following circumstances:
 
      (a)  If the offence for which extradition is requested is regarded by the
 requested State as an offence of a political nature;
 
      (b)  If the requested State has substantial grounds for believing that
 the request for extradition has been made for the purpose of prosecuting or
 punishing a person on account of that person's race, religion, nationality,
 ethnic origin, political opinions, sex or status, or that that person's
 position may be prejudiced for any of those reasons;
 
      (c)  If the offence for which extradition is requested is an offence
 under military law, which is not also an offence under ordinary criminal law;
 
      (d)  If there has been a final judgement rendered against the person in
 the requested State in respect of the offence for which the person's
 extradition is requested;
 
      (e)  If the person whose extradition is requested has, under the law of
 either Party, become immune from prosecution or punishment for any reason,
 including lapse of time or amnesty;
 
      (f)  If the person whose extradition is requested has been or would be
 subjected in the requesting State to torture or cruel, inhuman or degrading
 treatment or punishment or if that person has not received or would not
 receive the minimum guarantees in criminal proceedings, as contained in the
 International Covenant on Civil and Political Rights, article 14;
 
      (g)  If the judgement of the requesting State has been rendered
 in absentia, the convicted person has not had sufficient notice of the trial
 or the opportunity to arrange for his or her defence and he has not had or
 will not have the opportunity to have the case retried in his or her presence.
 
                                   ARTICLE 4
                          Optional grounds for refusal
 
      Extradition may be refused in any of the following circumstances:
 
      (a)  If the person whose extradition is requested is a national of the
 requested State.  Where extradition is refused on this ground, the requested
 State shall, if the other State so requests, submit the case to its competent
 authorities with a view to taking appropriate action against the person in
 respect of the offence for which extradition had been requested;
 
      (b)  If the competent authorities of the requested State have decided
 either not to institute or to terminate proceedings against the person for the
 offence in respect of which extradition is requested;
 
      (c)  If a prosecution in respect of the offence for which extradition is
 requested is pending in the requested State against the person whose
 extradition is requested;
 
      (d)  If the offence for which extradition is requested carries the death
 penalty under the law of the requesting State, unless that State gives such
 assurance as the requested State considers sufficient that the death penalty
 will not be imposed or, if imposed, will not be carried out;
 
      (e)  If the offence for which extradition is requested has been committed
 outside the territory of either Party and the law of the requested State does
 not provide for jurisdiction over such an offence committed outside its
 territory in comparable circumstances;
 
      (f)  If the offence for which extradition is requested is regarded under
 the law of the requested State as having been committed in whole or in part
 within that State.  Where extradition is refused on this ground, the requested
 State shall, if the other State so requests, submit the case to its competent
 authorities with a view to taking appropriate action against the person for
 the offence for which extradition had been requested;
 
      (g)  If the person whose extradition is requested has been sentenced or
 would be liable to be tried or sentenced in the requesting State by an
 extraordinary or ad hoc court or tribunal;
 
      (h)  If the requested State, while also taking into account the nature of
 the offence and the interests of the requesting State, considers that, in the
 circumstances of the case, the extradition of that person would be
 incompatible with humanitarian considerations in view of age, health or other
 personal circumstances of that person.
 
                                   ARTICLE 5
                Channels of communication and required documents
 
 1.   A request for extradition shall be made in writing.  The request,
 supporting documents and subsequent communications shall be transmitted
 through the diplomatic channel, directly between the ministries of justice or
 any other authorities designated by the Parties.
 
 2.   A request for extradition shall be accompanied by the following:
 
      (a)  In all cases,
 
      (i)  As accurate a description as possible of the person sought, together
           with any other information that may help to establish that person's
           identity, nationality and location;
 
     (ii)  The text of the relevant provision of the law creating the offence
           or, where necessary, a statement of the law relevant to the offence
           and a statement of the penalty that can be imposed for the offence;
 
      (b)  If the person is accused of an offence, by a warrant issued by a
 court or other competent judicial authority for the arrest of the person or a
 certified copy of that warrant, a statement of the offence for which
 extradition is requested and a description of the acts or omissions
 constituting the alleged offence, including an indication of the time and
 place of its commission;
 
      (c)  If the person has been convicted of an offence, by a statement of
 the offence for which extradition is requested and a description of the acts
 or omissions constituting the offence and by the original or certified copy of
 the judgement or any other document setting out the conviction and the
 sentence imposed, the fact that the sentence is enforceable, and the extent to
 which the sentence remains to be served;
 
      (d)  If the person has been convicted of an offence in his or her
 absence, in addition to the documents set out in paragraph 2 (c) of the
 present article, by a statement as to the legal means available to the person
 to prepare his or her defence or to have the case retried in his or her
 presence;
 
      (e)  If the person has been convicted of an offence but no sentence has
 been imposed, by a statement of the offence for which extradition is requested
 and a description of the acts or omissions constituting the offence and by a
 document setting out the conviction and a statement affirming that there is an
 intention to impose a sentence.
 
 3.   The documents submitted in support of a request for extradition shall be
 accompanied by a translation into the language of the requested State or in
 another language acceptable to that State.
 
                                   ARTICLE 6
                        Simplified extradition procedure
 
      The requested State, if not precluded by its law, may grant extradition
 after receipt of a request for provisional arrest, provided that the person
 sought explicitly consents before a competent authority.
 
                                   ARTICLE 7
                        Certification and authentication
 
      Except as provided by the present Treaty, a request for extradition and
 the documents in support thereof, as well as documents or other material
 supplied in response to such a request, shall not require certification or
 authentication.
                                   ARTICLE 8
                             Additional information
 
      If the requested State considers that the information provided in support
 of a request for extradition is not sufficient, it may request that additional
 information be furnished within such reasonable time as it specifies.
 
                                   ARTICLE 9
                               Provisional arrest
 
 1.   In case of urgency the requesting State may apply for the provisional
 arrest of the person sought pending the presentation of the request for
 extradition.  The application shall be transmitted by means of the facilities
 of the International Criminal Police Organization, by post or telegraph or by
 any other means affording a record in writing.
 
 2.   The application shall contain a description of the person sought, a
 statement that extradition is to be requested, a statement of the existence of
 one of the documents mentioned in paragraph 2 of article 5 of the present
 Treaty, authorizing the apprehension of the person, a statement of the
 punishment that can be or has been imposed for the offence, including the time
 left to be served and a concise statement of the facts of the case, and a
 statement of the location, where known, of the person.
 
 3.   The requested State shall decide on the application in accordance with
 its law and communicate its decision to the requesting State without delay.
 
 4.   The person arrested upon such an application shall be set at liberty upon
 the expiration of  40  days from the date of arrest if a request for
 extradition, supported by the relevant documents specified in paragraph 2 of
 article 5 of the present Treaty, has not been received.  The present paragraph
 does not preclude the possibility of conditional release of the person prior
 to the expiration of the  40  days.
 
 5.   The release of the person pursuant to paragraph 4 of the present article
 shall not prevent rearrest and institution of proceedings with a view to
 extraditing the person sought if the request and supporting documents are
 subsequently received.
                                   ARTICLE 10
                            Decision on the request
 
 1.   The requested State shall deal with the request for extradition pursuant
 to procedures provided by its own law, and shall promptly communicate its
 decision to the requesting State.
 
 2.   Reasons shall be given for any complete or partial refusal of the
 request.
                                   ARTICLE 11
                            Surrender of the person
 
 1.   Upon being informed that extradition has been granted, the Parties shall,
 without undue delay, arrange for the surrender of the person sought and the
 requested State shall inform the requesting State of the length of time for
 which the person sought was detained with a view to surrender.
 
 2.   The person shall be removed from the territory of the requested State
 within such reasonable period as the requested State specifies and, if the
 person is not removed within that period, the requested State may release the
 person and may refuse to extradite that person for the same offence.
 
 3.   If circumstances beyond its control prevent a Party from surrendering or
 removing the person to be extradited, it shall notify the other Party.  The
 two Parties shall mutually decide upon a new date of surrender, and the
 provisions of paragraph 2 of the present article shall apply.
 
                                   ARTICLE 12
                       Postponed or conditional surrender
 
 1.   The requested State may, after making its decision on the request for
 extradition, postpone the surrender of a person sought, in order to proceed
 against that person, or, if that person has already been convicted, in order
 to enforce a sentence imposed for an offence other than that for which
 extradition is sought.  In such a case the requested State shall advise the
 requesting State accordingly.
 
 2.   The requested State may, instead of postponing surrender, temporarily
 surrender the person sought to the requesting State in accordance with
 conditions to be determined between the Parties.
 
                                   ARTICLE 13
                             Surrender of property
 
 1.   To the extent permitted under the law of the requested State and subject
 to the rights of third parties, which shall be duly respected, all property
 found in the requested State that has been acquired as a result of the offence
 or that may be required as evidence shall, if the requesting State so
 requests, be surrendered if extradition is granted.
 
 2.   The said property may, if the requesting State so requests, be
 surrendered to the requesting State even if the extradition agreed to cannot
 be carried out.
 
 3.   When the said property is liable to seizure or confiscation in the
 requested State, it may retain it or temporarily hand it over.
 
 4.   Where the law of the requested State or the protection of the rights of
 third parties so require, any property so surrendered shall be returned to the
 requested State free of charge after the completion of the proceedings, if
 that State so requests.
                                   ARTICLE 14
                               Rule of speciality
 
 1.   A person extradited under the present Treaty shall not be proceeded
 against, sentenced, detained, re-extradited to a third State, or subjected to
 any other restriction of personal liberty in the territory of the requesting
 State for any offence committed before surrender other than:
 
      (a)  An offence for which extradition was granted;
 
      (b)  Any other offence in respect of which the requested State
 consents.  Consent shall be given if the offence for which it is requested is
 itself subject to extradition in accordance with the present Treaty.
 
 2.   A request for the consent of the requested State under the present
 article shall be accompanied by the documents mentioned in paragraph 2 of
 article 5 of the present Treaty and a legal record of any statement made by
 the extradited person with respect to the offence.
 
 3.   Paragraph 1 of the present article shall not apply if the person has had
 an opportunity to leave the requesting State and has not done so within
  30/45  days of final discharge in respect of the offence for which that
 person was extradited or if the person has voluntarily returned to the
 territory of the requesting State after leaving it.
 
                                   ARTICLE 15
                                    Transit
 
 1.   Where a person is to be extradited to a Party from a third State through
 the territory of the other Party, the Party to which the person is to be
 extradited shall request the other Party to permit the transit of that person
 through its territory.  This does not apply where air transport is used and no
 landing in the territory of the other Party is scheduled.
 
 2.   Upon receipt of such a request, which shall contain relevant information,
 the requested State shall deal with this request pursuant to procedures
 provided by its own law.  The requested State shall grant the request
 expeditiously unless its essential interests would be prejudiced thereby.
 
 3.   The State of transit shall ensure that legal provisions exist that would
 enable detaining the person in custody during transit.
 
 4.   In the event of an unscheduled landing, the Party to be requested to
 permit transit may, at the request of the escorting officer, hold the person
 in custody for  48  hours, pending receipt of the transit request to be made
 in accordance with paragraph 1 of the present article.
 
                                   ARTICLE 16
                              Concurrent requests
 
      If a Party receives requests for extradition for the same person from
 both the other Party and a third State it shall, at its discretion, determine
 to which of those States the person is to be extradited.
 
                                   ARTICLE 17
                                     Costs
 
 1.   The requested State shall meet the cost of any proceedings in its
 jurisdiction arising out of a request for extradition.
 
 2.   The requested State shall also bear the costs incurred in its territory
 in connection with the seizure and handing over of property, or the arrest and
 detention of the person whose extradition is sought.
 
 3.   The requesting State shall bear the costs incurred in conveying the
 person from the territory of the requested State, including transit costs.
 
                                   ARTICLE 18
                                Final provisions
 
 1.   The present Treaty is subject to  ratification, acceptance or approval .
 The instruments of  ratification, acceptance or approval  shall be exchanged
 as soon as possible.
 
 2.   The present Treaty shall enter into force on the thirtieth day after the
 day on which the instruments of  ratification, acceptance or approval  are
 exchanged.
 
 3.   The present Treaty shall apply to requests made after its entry into
 force, even if the relevant acts or omissions occurred prior to that date.
 
 4.   Either Contracting Party may denounce the present Treaty by giving notice
 in writing to the other Party.  Such denunciation shall take effect six months
 following the date on which such notice is received by the other Party.
 
      IN WITNESS WHEREOF the undersigned, being duly authorized thereto by
 their respective Governments, have signed the present Treaty.
 
 
 DONE at                  on                  in
 the
 and                   languages,  both/all  texts being equally authentic.