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Last Revised:
 22 September, 1999

Model Treaty on Extradition

Articles: [1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] [18]

Adopted by the Eighth Crime Congress, Havana, 27 August-7 September 1990

ARTICLE 1

Obligation to extradite

Each Party agrees to extradite to the other any person who is wanted in the requesting State for prosecution for an extraditable offense or for the imposition or enforcement of a sentence in respect of such an offense.

ARTICLE 2

Extraditable offenses

  1. Extraditable offenses are those punishable under the laws of both Parties by imprisonment or deprivation of liberty for a maximum period of at least [one/two] year(s), or by a more severe penalty. Where request for extradition relates to a person wanted for enforcement of a sentence, extradition shall be granted only if a period of at least [four/six] months remains to be served.
  2. In determining whether or an offense is punishable under the laws of both Parties, it shall not matter whether:
    a) The laws of both Parties place the acts or omissions constituting the offense within the same category of offense or denominate the offense by the same terminology;
    b) Under the laws of the Parties the constituent elements of the offense differ, it is the totality of the acts or omissions that shall betaken into account.
  3. Where extradition is sought for an offense against a law relating to taxation, customs duties or other revenue matters, extradition may not be refused on the ground that the law of the requesting State does not impose the same kind of tax or duty.
  4. If the request for extradition includes several separate offenses each of which is punishable under the laws of both Parties, but some of which do not fulfill other conditions set out in paragraph 1 of this article, the requested Party may grant extradition for the latter offenses provided the persons is to be extradited for at least one extraditable offense.

ARTICLE 3

Mandatory grounds for refusal

Extradition shall not be granted in any of the following circumstances:

  1. If the offense for which extradition is requested is regarded as apolitical offense;
  2. If there are grounds to believe the request has been made to prosecute or punish a person on account of that person's race, religion, nationality, ethnic origin, political opinions, sex or status, or that the person's position may be prejudiced for any of these reasons;
  3. If the offense is an offense under military law and not also an offense under criminal law;
  4. If final judgment has been rendered against the person in the requested State in respect of the offense for which the persons' extradition is requested;
  5. If the person whose extradition has been requested has, under the law of either Party, become immune from prosecution or punishment for any reason, including lapse of time or amnesty;
  6. If the person would be subjected to torture or cruel, inhuman treatment or degrading punishment or if that person has not or would not receive the minimum guarantees in criminal proceedings as contained in the International Covenant on Civil and Political Rights, article 14.
  7. If the judgment of the requesting State has been rendered in absentia, the convicted person has not had sufficient notice of the trial nor opportunity to arrange for a defense and has not or will not have the opportunity to have the case retried.

ARTICLE 4

Optional grounds for refusal

Extradition may be refused in any of the following circumstances:

  1. If the person whose extradition is requested is a national of the requested State;
  2. If the competent authorities of the requested State have decided either not to institute or to terminate proceedings against the person for the offense for which extradition is requested;
  3. If prosecution in the requested State is pending for the same offense;
  4. If the offense carries the death penalty under the law of the requesting State;
  5. If the offense has been committed outside the territory of either Party and the law of the requested State does not provide for jurisdiction over such an offense committed outside its territory;
  6. If the offense is regarded under the law of the requested State as having been committed in whole or in part within that State;
  7. If the person whose extradition has been requested has been sentenced or would be liable to be tried in the requesting State by an extraordinary or ad hoc court or tribunal;
  8. If extradition 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 and transmitted, along with supporting documents, through diplomatic channels directly between the ministries of justice or other designated authorities.
  2. A request shall be accompanied by the following:
    1. In all cases,
      i)  As accurate a description as possible of the person sought and information to help establish that person's identity, nationality and location;
      ii) The text of the relevant provision of the law creating the offense and a statement of the penalty that can be imposed;
    2. If a warrant for arrest has been issued, by a certified copy of that warrant, a statement of the offense for which extradition is requested and a description of the acts or omissions constituting the alleged offense;
    3. If the person has been convicted, by a statement of the offense and a description of the acts or omissions constituting the offense and by the original or certified copy of the judgment;
    4. If the person has been convicted in his or her absence, in addition to the documents set out in paragraph 2 c), by a statement as to the legal means available to the person to prepare a defense or have the case retried;
    5. If the person has been convicted but no sentence imposed, by a statement of the offense, a document setting out the conviction and a statement affirming intent to impose a sentence.
  3. The documents shall be accompanied by a translation into the language of the requested State or another language acceptable to that State.

ARTICLE 6

Simplified extradition procedure

The requested State 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 this Treaty, a request for extradition and the supporting documents thereto. shall not require certification or authentication.

ARTICLE 8

Additional information

If the requested State considers that the information provided in a request for extradition is not sufficient, it may request additional information to 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 presentation of the request or extradition.
  2. The application for provisional arrest shall contain a description of the person sought, a statement of the existence of one of the documents mentioned in paragraph 2 of article 5, a statement of the punishment that has or can be imposed and a concise statement of the facts of the case and the location, where known, of the person.
  3. The requested State shall decide on the application and communicate its decision without delay.
  4. The person arrested shall be set at liberty upon the expiration of [40] days if a request for extradition supported by the relevant documents has not been received.
  5. Such release shall not prevent rearrest and institution of extradition proceedings if the request is subsequently received.

ARTICLE 10

Decision on the request

  1. The requested State shall promptly communicate its decision on the request for extradition 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 was detained with a view to surrender.
  2. The person shall be removed from the territory of the requested State within such reasonable time as the requested State specifies and, if the person is not removed by then, the requested State may release the person and may refuse extradition for the same offense.
  3. If circumstances beyond its control prevent a Party from surrendering or removing the person to be extradited it shall notify the other Party and a new date of surrender will be agreed upon.

ARTICLE 12

Postponed or conditional surrender

  1. The requested State may postpone the surrender of a person sought in order to proceed against that person or enforce a sentence imposed for an offense other than that for which extradition is sought.
  2. The requested State may, instead of postponing surrender, temporarily surrender the person sought to the requesting State in accord with conditions 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, all property found in the requested State that has been acquired as a result of the offense or that may be required as evidence shall, upon request, be surrendered if extradition is granted.
  2. Said property may, on request, be surrendered to the requesting State even if the extradition having been agreed to cannot be carried out.
  3. When 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 protection of the rights of third parties so require, any property so surrendered shall be returned to the requested State free of charge after completion of proceedings, if that State so requests.

ARTICLE 14

Rule of speciality

  1. A person extradited under this Treaty shall not be proceeded against, sentenced, detained, re-extradited to a third State, or subjectedto any other restriction of personal liberty in the territory of therequesting State for any offence committed before surrender other than:
    1. An offence for which extradition was granted;
    2. Any other offence in respect of which the requested State consents.
  2. A request for the consent of the requested State under this articleshall be accompanied by the documents mentioned in paragraph 2 of article 5 and a legal record of any statement made by the extradited person with respect to the offense.
  3. Paragraph 1 of this article shall not apply if the person has hadan opportunity to leave the requesting State and has not done so within [30/45] days of final discharge in respect of the offense 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 transit through its territory.
  2. The requested State shall grant such a request expeditiously unless its essential interests would be prejudiced thereby.
  3. The State of transit shall ensure legal provisions enabling the person to be held 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.

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 with the seizure and handing over of property or the arrest and detention of the person 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. This Treaty is subject to (ratification, acceptance or approval).
  2. This Treaty shall enter into force on the thirtieth day after the day on which the instruments of (ratification, acceptance or approval) are exchanged.
  3. This 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 Party may denounce this Treaty by giving notice in writing to the other Party. Such denunciation shall take effect six months following the date on which notice is received by the other Party.

Index