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occurred by the date of entry into force of the 1974 Convention

We believe that this conclusion is consistent with U.S. domestic law in a situation where a criminal statute is repealed or modified during a prosecution. See Pipefitters v. U.S., 407 U.S. 385 at 432 (1972), where it is stated:

The rule is well established that prosecutions under statutes impliedly or expressly repealed while the case is still pending on direct review must abate in the absence of a demonstration of contrary congressional intent or a general saving statute. For, "[p]rosecution for crimes is but an application or enforcement of the law, and if the prosecution continues the law must continue to vivify it." United States v. Chambers, 291 U.S. 217, 226(1934). This doctrine had its earliest expression in United States v. Schooner Peggy, 1 Cranch 103 (1801), and has since "been consistently recognized and applied by this Court." Bell v. Maryland, 378 U.S. 226, 231 n.2(1964). As Chief Justice Hughes observed in Chambers, supra, at 226, "The principle involved is . . . not archaic but rather is continuing and vital,-that the people are free to withdraw the authority they have conferred and, when withdrawn, . . . the courts [cannot] assume the right to continue to exercise it.'

Dept. of State File No. P76 0149-2457. Art. XX of the 1974 treaty provides that the treaty "applies to offenses. . . committed before, on or after the date on which this treaty enters into force, provided that no extradition shall be granted for an offense committed before that date which was not an offense under the laws of both contracting parties at the time of its commission." For a summary of the provisions of the 1974 treaty see the 1974 Digest, pp. 121-123.

U.S.-Finland

The United States and Finland signed a new extradition treaty on June 11, 1976, to replace the 1924 treaty of extradition between the two countries (TS 710; 44 Stat. 2002) and the 1934 supplementary treaty (TS 871; 49 Stat. 2690). The new treaty is one of a series of extradition treaties being negotiated by the United States and represents a substantial modernization with respect to the procedural aspects of extradition. It adds to the list of extraditable offenses aircraft hijacking, narcotics, and conspiracy to commit listed offenses. Knute E. Malmborg, Assistant Legal Adviser for Management Affairs, Department of State, noted in a legal memorandum of May 7, 1976, that the provisions of the treaty are consistent with the pending revision of the Federal Penal Code (18 U.S.C. paragraphs 3211-3217).

Ratification by the two countries is required.

U.S.-Spain

On February 3, 1976, President Ford transmitted to the Senate for advice and consent to ratification a supplementary extradition treaty between the United States and Spain, signed January 25, 1975 (S. Ex. B, 94th Cong., 2d Sess.) It increases from 30 to 45 days the period of time during which a person may be provisionally arrested and

detained pending presentation, through diplomatic channels, of documents in support of an extradition request. The change is in keeping with modern extradition treaties and is intended to prevent the release of an arrested person for lack of properly prepared extradition papers. The new treaty supplements the treaty of May 29, 1970 (TIAS 7136; 22 UST 737).

The Senate gave its advice and consent on June 21, 1976, and the President ratified for the United States on Aug. 10, 1976. Ratification by Spain is required.

U.S.-United Kingdom

A new extradition treaty came into force on January 21, 1977, between the United States and the United Kingdom (TIAS 8468; 28 UST), replacing the 1931 extradition treaty between the two countries (TS 849; 47 Stat. 2122). The new treaty provides for the extradition of fugitives who have been charged with any of the 29 offenses listed in the schedule to the treaty. The most significant offenses added are those relating to narcotics, including psychotropic and other dangerous drugs, and the offense of aircraft hijacking. Also significant is the inclusion of a provision authorizing extradition under certain conditions for conspiracy to commit any of the listed offenses.

The protocol of signature permits the U.S. Government to obtain extradition of a person for an offense to which the treaty relates when U.S. Federal jursidiction is based upon interstate transport or transportation or the use of the mails of interstate facilities.

Under article II the treaty applies to the United States of America and, in relation to the United Kingdom, to Great Britain and Northern Ireland, the Channel Islands, the Isle of Man and any territory for the international relations of which the United Kingdom is responsible and to which the treaty is extended by agreement of the parties.

On Oct. 21, 1976, when ratifications were exchanged, the treaty was extended by mutual agreement to:

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U.S. Model Treaty

The Department of State on November 12, 1976, offered for public comment a model bilateral treaty on mutual extradition of fugitives which it had developed with suggestions from the Department of Justice and local prosecutors. In a notice which appeared in the Federal Register of November 24, 1976, Monroe Leigh, Legal Adviser of the Department of State, stated that the model treaty was intended to serve as the basic text for the initiation of bilateral negotiations and that comments received on it would be considered or taken into account to the extent feasible. Mr. Leigh set forth the following summary and explanation of U.S. policy on extradition:

U.S. policy on extradition is to: (1) Make no distinction in extradition between U.S. nationals and other persons; (2) Negotiate a mutually agreed list of extraditable offenses which are crimes in both countries concerned; (3) Provide legal representation to the other Government in proceedings here; and (4) Permit retroactive application of new treaties as long as the offense, when committed, was a crime under the laws of both parties. It has also been U.S. policy not to extend such treaties to military or selective service offenses, nor to consider domestic relations offenses as an appropriate subject of extradition.

The policy on extradition of nationals is based upon the general lack of jursidiction in the United States to prosecute serious offenses committed by Americans abroad. It is important to have some means by which such offenses can be punished. The reasoning in support of a list of offenses is that such a list permits an advance determination whether an offense is extraditable, thus eliminating costly, disruptive tests in United States and foreign courts to determine whether novel or specialized offenses in one country are extraditable in the other. The policy requiring legal representation of the other country in extradition proceedings is based upon economic considerations since, in most cases, the United States is the moving party. Retroactive application of extradition treaties is considered desirable to reduce the possibility of an evasion of justice based upon technicalities of timing. U.S. policy on military and selective service offenses is founded on the belief that it is inappropriate to use the extradition process to assist another country to enforce military discipline and military obligations. Similarly, extradition is an instrument of criminal law enforcement, and it is believed that it might be frequently misused if applied to domestic relations problems such as custody disputes. Fed. Reg., Vol. 41, No. 228, Nov. 24, 1976, pp. 51897-51899. The text of the model treaty follows:

DRAFT EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND (NAME OF COUNTRY)

The Government of the United States of America and the Government of (name of country);

Desiring to make a new treaty for the reciprocal extradition of offenders, have agreed as follows:

ARTICLE I

Each Contracting Party agrees, under the conditions and circumstances established by this Convention, reciprocally to deliver up persons found in its territory who have been charged with or convicted of any of the offenses mentioned in Article II of this Convention committed within the territorial jurisdiction of the other, or outside thereof under the conditions specified in Article III of this Convention.

ARTICLE II

Persons shall be delivered up according to the provisions of this Convention for prosecution when they have been charged with, or to undergo sentence when they have been convicted of, any of the following offenses:

1. Murder; assault with intent to commit murder.

2. Manslaughter.

3. Malicious wounding; inflicting grievous bodily harm.

4. Rape; indecent assault; sodomy.

5. Abortion.

6. Unlawful carnal knowledge of children under the age specified by the laws of both the requesting and requested parties.

7. Procuration.

8. Wilful nonsupport or wilful abandonment of a minor or other dependent person when the life of that minor or that dependent person is or is likely to be injured or endangered.

9. Bigamy.

10. Kidnapping; child stealing; abduction; false imprisonment.

11. Robbery.

12. Burglary; housebreaking or shopbreaking.

13. Larceny.

14. Embezzlement.

15. Obtaining property, money or valuable securities by false pretenses or by threat of force or by defrauding the public or any person by deceit or falsehood or other fraudulent means, whether such deceit or falsehood or any fraudulent means would or would not amount to a false pretense.

16. Bribery, including soliciting, offering and accepting.

17. Extortion.

18. Receiving or transporting any money, valuable securities or other property knowing the same to have been unlawfully obtained.

19. Fraud by a bailee, banker, agent, factor, trustee, executor, administrator or by a director or officer of any company.

20. Forgery or uttering what is forged.

21. The forgery or false making of official documents or public records of the government or public authority or the uttering or fraudulent use of the same. 22. The making or the utterance, circulation or fraudulent use of counterfeit money or counterfeit seals, stamps, dyes and marks of the government or public authority.

23. Knowingly and without lawful authority, making or having in possession any instrument, tool, or machine adopted and intended for the counterfeiting of money, whether coin or paper.

24. Perjury; subornation of perjury.

25. False swearing or making a false statement to a government agency or official. 26. Arson.

27. Any malicious act done with intent to endanger the safety of any person traveling upon a railway, or in any aircraft or vessel or bus or other means of transportation within the territorial jurisdiction of either party as defined in Article

III.

28. Unlawful seizure of an aircraft or vessel.

29. Piracy, by statute or by law of nations; mutiny or revolt on board an aircraft or vessel against the authority of the captain or commander of such aircraft or vessel; any seizure or exercise of control, by force or violence or threat of force or violence, of an aircraft or vessel,

30. Malicious injury to property.

31. Smuggling.

32. Offenses against the bankruptcy laws.

33. Offenses against the laws relating to the traffic in possession, or production or

manufacture of, narcotic drugs, cannabis, hallucinogenic drugs, cocaine and its derivatives, and other dangerous drugs and chemicals.

34. Offenses against the laws relating to the illicit manufacture of or traffic in poisonous chemicals or substances injurious to health.

35. Use of the mails or other means of communication in connection with schemes devised or intended to deceive or defraud the public or for the purpose of obtaining money or property by false pretenses.

36. Offenses against the laws relating to the sale or transportation or purchase of securities or commodities.

37. Unlawful manufacture, importation, exportation, transfer, possession, concealment, transportation or receipt of any firearms.

38. Unlawful obstruction of juridical proceedings or proceedings before governmental bodies or interference with an investigation of a violation of a criminal statute by the influencing, bribing, impeding, threatening, or the injuring by any means, any officer of the court, juror, witness, or duly authorized criminal investigator.

39. a. Unlawful abuse of official authority which results in grievous bodily injury or deprivation of the life, liberty or property of any person.

b. Unlawful injury, intimidation or interference with voting or candidacy for public office, jury service, government employment, or the receipt or enjoyment of benefits provided by government agencies.

c. Unlawful injury, intimidation or interference with any person because of his race, religion or national origin and because he is or has been engaged in activities in which discrimination on account of race, color, religion or national origin is prohibited by law.

d. Unlawful injury, intimidation or interference with any person because he is or has been lawfully aiding or encouraging other persons to participate without discrimination on account of race, color, religion or national origin, in any activity in which such discrimination is prohibited by law.

Extradition shall also be granted for attempts to commit or conspiracy to commit any of the offenses mentioned in this Article.

Extradition shall also be granted for participation in any of the offenses mentioned in this Article.

ARTICLE III

When the offense has been committed outside the territorial jurisdiction of the requesting Party, extradition need not be granted unless the laws of the requested Party provide for the punishment of such an offense committed in similar circumstances.

The words "territorial jurisdiction" as used in the present Convention mean: Territory, including territorial waters, and the airspace thereover belonging to or under the control of one of the Contracting Parties, and vessels and aircraft belonging to one of the Contracting Parties or to a citizen or corporation thereof when such vessel is on the high seas or such aircraft is over the high seas.

The words "transporting" and "transportation," as used in Article II of the present Convention, are included in order to grant jurisdiction for prosecution of the enumerated offenses to the United States Government. It is understood that for purposes of this Convention the gravamen of the offense will be the underlying crime.

ARTICLE IV

Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this convention, but the executive authority of each shall have the power to deliver them up, if, in its discretion, it be deemed proper to do so.

ARTICLE V

Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, either to justify his committal for trial if the offense of which he is accused had been committed in that place or to prove that he is the identical person convicted by the courts of the requesting Party.

ARTICLE V BIS

The person whose extradition has been requested may advise the appropriate authority of the requested State that he waives the necessity for a hearing on his extraditability. The requested State may thereupon cause the issuance of an order authorizing surrender of the person sought to agents of the government of the requesting State.

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