| 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are outdated and should be replaced by modern arrangements which take into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.