Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 7, 1874

No. 41.
Mr. Jones to Mr. Fish.

Legation of the United States,
Brussels , March 22, 1874. (Received April 7.)

No. 231.]

Sir: I have the honor to transmit herewith the report of the commission charged with the examination of the question of extradition, as published in the Moniteur of this date.

Very respectfully, &c.,

J. R. JONES.

[Inclosure.]

Report made on behalf of the Central Section,^* by M. Wouters.

[Session of February 28, 1874.]

extradition.

[Translation.]

Gentlemen: Legislation with regard to extradition, after having long constituted an exceptional branch, entered some years since into the domain of common law.

The onward march of civilization, the wonderful inventions of modern times, and the modifications which have almost everywhere been introduced in penal procedure, are the principal causes to which this state of things is to be attributed.

As nations have extended and multiplied their relations, they have realized the necessity of mutually aiding each other in the repression of offenses against the laws of universal morality and justice.

Belgium has not remained behind in this movement.

The law of 1833 was only of a provisional character, and required numerous improvements. These were made in 1868. We will briefly state what they were:

The number of acts rendering their perpetrator liable to extradition, which were only a few offenses of exceptional gravity, has been extended to all offenses in common law which are provided for and made punishable by the penal laws of civilized nations.

To the sentence of condemnation and the order of the chamber of indictments the law of 1868 assimilated the writ of transfer from the council chamber and the instrument of criminal procedure issued by a competent judge, decreeing formally, or causing, with full authority, the transfer of the party accused to a court of repressive jurisdiction.

The above was not the only modification made in the law.

According to the law of 1833, when the transit of a criminal through Belgium was asked for by a government having an extradition treaty with our country, such passage could only be granted by an observance of all the formalities required for extradition itself. The bill passed by the chambers in 1868 required only the production of the document serving as the basis of the extradition, without requiring in anything else notice from the chamber of indictments.

A no less important provision was introduced by article 4, which, in order to secure the prompt and efficient repression of crimes and offenses, permits the provisional arrest of a foreigner, in an urgent case, on the exhibition of a warrant of arrest issued by the examining magistrate of the place of his residence, or of the place where he may be found, based upon official notice given to the Belgian authorities by the authorities of the territory in which the crime or the offense shall have been committed.

The law of 1868, moreover, rendered applicable to the offenses provided for in the first article, articles 2 and 3 of the law of December 30, 1836, concerning the repression of crimes and offenses committed by Belgians in other countries, and the law of July 7, 1865, concerning foreigners.

Finally, it provided for the publicity of hearings before the chamber of indictments, and granted to foreigners the privilege of defense by counsel.

This reform, which we have thought proper to mention here for the purpose of better fixing the sense of the new provisions, was sanctioned by the almost unanimous vote of the chamber and of the senate, and ratified by the general sentiment of the country.

Several more steps still remain to be taken in this path, and they form the object of the bill submitted to your consideration.

It is to be remarked, this bill leaves previous legislation on the same subject intact in all its essential parts. It merely introduces some improvements, the propriety and utility of which have been demonstrated by experience.

examination of the sections.

The 1st, 2d, 3d, 4th, and 5th sections voted for the bill unanimously; in the 6th section it was adopted, three members voting for it and two not voting.

In the third section a member asked if No. 3 of the 1st article of the bill included letters of credit and postage-stamps.

The same member requested the government to explain itself in regard to the generic term deception, inserted in No. 20 of article 1st.

In the 6th section, one member, referring to the 3d article of the bill, painted out several objections to granting extradition on the production of a warrant of arrest, He thought it preferable to leave existing legislation on this point unchanged.

examination in the central section.

The general discussion was opened and closed without observation.

In article first the section instructed its reporter to ask the minister of justice for the explanations desired by the third section.

A member desiring to know why No. 12 of article first is only applicable to attempts against individual liberty, committed by private persons, and should not be applied to the same acts committed by agents of the public authorities, the section decided that a question in this sense should be addressed to the government.

In transmitting to him the replies to these various questions, the minister of justice requested the reporter to remark to the central section that they do not relate to the modifications which it is designed to introduce by the bill into the present law.

The minister said that the chamber would doubtless think, as did the government, that it was important to alter the text of the existing law as little as possible, so as to avoid a troublesome perturbation in jurisprudence and in the interpretation of international conventions.

The minister added that he had, to this end, caused the changes which seemed desirable in the law passed six years previously in relation to the matter under discussion to be printed in italic letters in the bill.

The central section shared this view.

It is important to observe, while on this subject, that the list of offenses provided for in article 1 of the law of 1868 receives no additions by the bill under discussion. In including the receiving of stolen goods and assaults and wounds which have caused serious mutilation the bill only makes good an omission, the cause of which is pointed out in the statement of motives.

It seemed proper expressly to mention complicity and the attempt to commit crime, which, in the practice of courts of appeal, have always been considered as being understood, by implication, in the terms of the law of 1833 and that of 1868, and have been mentioned since the latter date in all treaties made in accordance with that law.

The new article 2, which provides that, when the crime or offense giving rise to a demand for extradition shall have been committed outside of the territory of the party making the demand, the government may deliver up, on condition of reciprocity, a foreigner who is under prosecution, or who has been sentenced, in cases in which the Belgian law authorizes prosecution for the same offenses committed outside of the kingdom, was met with no objection on the part of the central section. That section thought that this provision supplied an important desideratum in the law, and that ample reasons for its existence were given in the statement of motives.

A Belgian might happen to be condemned in contumaciam in Belgium for a crime provided for by article 5 of the code of criminal examination, and then might cause scandal by coming to make a parade of his impunity on our frontiers, without fear of being disturbed or delivered up on account of an act committed outside of our territory.

Everybody admits that the law cannot tolerate such a thing.

Nevertheless, in order to prevent certain countries from unduly extending their jurisdiction in foreign countries, and thus removing persons whose extradition is desired by them from the jurisdiction of their natural judges, the bill wisely provides that the government shall not surrender, on condition of reciprocity, a foreigner who is under prosecution or who has been sentenced, save in cases in which the Belgian law authorizes prosecution for the same offenses committed outside of the kingdom. By reason of this restriction, which is formally stated in the law, the measure introduced can present no inconvenience.

With regard to article 3, a member made the same observations that were made in the 6th section.

A warrant of arrest seemed to him to be too summary a document to authorize extradition. He feared that this mode of proceeding might bring about abuses. It was better, he thought, to continue to require a previous examination in a foreign country.

This opinion was not shared by the section.

The measure whose adoption was proposed by the bill seemed to it to be supported by the strongest grounds.

Let us observe in the first place, that it has been adopted in the treaties of all countries successively, save those which have been concluded by Belgium and the Grand Duchy of Luxemburg, and this constant and almost universal practice has given rise to no inconvenience. It is readily seen that the exceptional position in which we are placed in this respect must be damaging to our relations with foreign governments, since it does not permit us to offer a reciprocity founded upon broader bases, such as is generally admitted in the conclusion of international arrangements in relation to extradition.

Considered in itself, the proposed measure offers very great advantages, which we will succinctly examine.

Its first effect will be to exert a decisive influence upon the speediness of the proceedings.

It must be admitted that a preparatory examination in the absence of the party accused, so that he cannot be confronted with his accomplices or with the witnesses, is necessarily incomplete and defective.

Moreover, in the case of an arrest in a foreign country, it being necessary that the decision for the transfer to a competent judge be produced within two months, the examining magistrate must confine himself to an investigation which is too often imperfect and inconclusive as to the facts of the case.

The case runs the risk, therefore, of being delivered over to the hazards of a hearing, without having been either matured or elucidated.

The inconvenience is especially apparent in criminal matters, in which the intervention of the council-chamber is not sufficient, and in which the court must, in its turn, pronounce sentence within the allotted time.

The interest of the accused is here identical with that of the prosecution.

Is it not evident that an examination held in his absence, when he can produce no evidence in his own behalf, must result in an order for the transfer of the accused to a competent court, and that it can have no other effect than to prolong his detention without any benefit to him?

Besides, it frequently happens that the accused asks to be delivered up to justice in his own country without delay, without waiting to go through the formalities of extradition, although he is then obliged to renounce the immunities which are secured to him by law and treaty.

Henceforth this will not be the case; he will be present himself throughout the examination, will choose a defender to aid him in refuting the charges made against him, and that without being deprived of any of the guarantees provided by article 6 of the law of December 1, 1833, which was kept in force by the law of 1868.

Let us not lose sight of the fact that our organic extradition law was enacted that we might conclude treaties with all civilized nations, and not only with countries whose forms of procedure are the same as our own.

In order to obviate the difficulties which might have arisen from the difference in the manner of organization of the repressive tribunals of foreign countries and those of Belgium, the law of 1868 assimilated to the writ of transfer from the council-chamber and to the order of the chamber of indictments the corresponding writ of a foreign criminal court.

It was evidently impossible precisely to define these documents; a rule, which permitted no deviation from it, was that they were to be the last instrument of preparatory procedure transferring the accused to the jurisdiction of his final judges.

But how is it to be determined whether the foreign document possesses this character, and whether no intermediate instrument is to come between the warrant of arrest and the appearance of the accused before the judge who is to punish or acquit him?

What shall we say especially of the English and American warrants? Can we recognize them as really possessing the character which the law requires? What shall we decide as regards the order for Eröffnung der Untersuchung, which is a part of the German procedure, the auto de prision of the Spanish laws, &c.? These documents daily give rise to difficulties to which the measure proposed by the bill would put an end, and which are now the only obstacle to the conclusion of an extradition treaty with the United States, which country has been the place of refuge for the majority of the great criminals who for some years past have escaped from justice in Belgium. The United States have inscribed in their laws the principle of the presence of the accused at every stage of his examination.

The extradition on a warrant of arrest is, moreover, readily reconcilable with the new provisions of the bill for precautionary detention, which has been viewed with such marked favor by public opinion.

It may even be said that it is the corollary and the necessary condition of the passage of this bill.

For if the legislator steps aside in this matter from the rigor of our penal procedure, if he leaves the accused party, who is presumed to be guilty, provisionally at liberty, tips is done with the moral certainty that he will appear to answer the charge made against him. If he abuses the confidence of the examining magistrate by crossing the frontier, he must be restored, as speedily as possible, to his natural judges, without necessity of having recourse to all the formalities of a preparatory examination, the least inconvenience of which is that it is sometimes accompanied with delays which are incompatible with a proper administration of justice.

It is to be remarked that the new guarantees contained in the bill which was introduced on the 20th of January last are to be applicable to a Belgian surrendered by extradition for trial by the courts of his country.

Thus, immediately after his examination, he may communicate with his counsel. (Art. 3.) Thus also, within five days after the examination, the maintenance of the warrant of arrest will be made subject to confirmation by the council-chamber. (Art. 4.)

The case is the same with the guarantees provided in the following articles, the benefits of which cannot be denied him.

And let it not be said that a warrant of arrest is too summary a document, and that it does not permit the chamber of indictments to base its judgment upon sufficient information. This objection would seem more valid if Belgian judges had to decide concerning the guilt of accused parties whose extradition was demanded by foreign governments. This is no part of their duty; all that they have to do is to examine whether the offense with which the accused is charged in the document produced, be it a warrant of arrest, writ of transfer, indictment, or sentence, is provided for and made punishable by our laws, and whether it is among the offenses enumerated in the extradition treaty.

A warrant of arrest not containing these indications would be irregular, and could not be accepted.

Let us observe, finally, that the introduction of this measure in nowise impairs the guarantees provided by the laws of 1833 and 1868.

Thus the warrant of arrest will first be rendered executory by the council-chamber; the session of the chamber of indictments, when the latter is called upon to give its opinion, is to be public, and a foreigner may enjoy the benefit of counsel.

All these guarantees must evidently remove all fear of an arbitrary or exaggerated enforcement of the law.

The provision of article 4 of the bill was adopted by the section without debate.

The framer of the law of 1833 thought little, about the transit question, and this is not at all strange; extradition was then considered as a measure of exceptional gravity, principally confined to countries bordering upon each other. Since that time the principle has become general as the relations of nations have become extended, and the number of treaties has been greatly increased.

Of the nineteen conventions which Belgium has with other countries, only four are with countries bordering upon her; in the case of most of the others transit has become a necessity.

It was therefore a necessity that the formalities prescribed by our laws in this matter should be simplified in certain respects.

Transit cannot be considered as a real extradition, nor can a foreigner who thus passes through our country by compulsion be compared to one who comes of his own accord to seek an asylum there under the aegis of its laws.

To prevent his passage through our territory would be opposing a simple measure of execution, without any benefit to the foreigner; it would cause long and costly delays, and would subject our country to inevitable reprisals.

Belgium was therefore deeply interested in the adoption of a mode of procedure which should be free from these difficulties and delays. The law of 1868 provided for such a mode in its third article, and the new bill only supplements that provision.

The proposition to increase from ten to fifteen days the duration of the provisional arrest in the case of a country bordering upon our own, and the authorization to extend this time to three months in the case of countries not in Europe, did not form a subject of discussion in the section; the reasons for this change are given in the statement of motives, and justify it in all points.

A final improvement is introduced in article 12 (new) of the bill. It authorizes compliance with letters rogatory issued by competent authorities in foreign countries, and asking either for a domiciliary visit or the seizure of the corpus delicti or documents which can convict the accused, in the case of one of the acts enumerated in the first article of this law.

The need of this improvement had long been felt; the legitimate complaints made in consequence of damage done to commercial and industrial interests rendered it very necessary.

Various requests from our judicial authorities, asking that domiciliary visits and seizures might be made in other countries, have necessarily remained unexecuted on account of the inability of our Government to grant reciprocity when similar requests were addressed to it by those countries.

Our constitution declares that a man’s domicile is inviolable, and permits a deviation from this principle only in the cases provided for by the law, and in the form which the law establishes.

No. 4 of article 5 of the law of 1868 authorizes, it is true, the examining magistrate to proceed in accordance with the rules prescribed by articles 87 to 90 of the code of criminal examination, but this article is not applicable in the matter in question, in which it is necessary to proceed to the visit and seizure, independently of any demand for extradition.

It was therefore proper to extend the exception somewhat.

Belgium is interested therein in the same way as foreign powers, for it frequently happens that an accused person takes advantage of the time which precedes his arrest’ and sends his papers and correspondence across the frontier, such papers being all that can establish the evidence of his guilt and render the examination satisfactory.

In reality, the seizure of embezzled articles or of documents which can convict, is, as remarked in the statement of motives, but a kind of material extradition, which is based upon the same principles as the surrender of the accused.

But, in the same manner as extradition, the execution of letters rogatory requesting domiciliary visits and seizures must be surrounded by strong guarantees, designed to protect the domiciles of Belgian citizens from indiscreet and unwarranted search.

The first of these guarantees should be to restrict the execution of letters rogatory in such matters to those cases in which the law allows extradition to be granted.

There will then be no danger of search in political matters or in matters in which the press is concerned; nor will there be any in fiscal matters and others not specially provided for.

A second guarantee inserted in the bill is the following: Letters rogatory from a foreign country must be rendered executory by the council chamber of the tribunal of first instance of the place where the search and seizure are to be made.

A doubt arose in the central section in regard to the proper interpretation of No. 5 of article 12.

The following is the reply of the minister of justice to the inquiry addressed to him on this subject:

“The provision of the concluding portion of article 12 (bill) can by no means result in investing the council chamber with the right to decide civil suits in cases in which the ownership of articles is claimed by a third party. The functions of the council chamber are in such cases purely conservative. It being its duty only to order the surrender of the articles seized to the foreign government, it has no other right except to refuse such surrender when third parties holding the articles, or others, such as unpaid hotel-keepers or tradesmen, are interested in having the seized articles prevented from crossing the frontier.

“The action of civil justice naturally remains reserved in this case, as in the one provided for in the 6th paragraph of article 5 of the law of 1868. The mention of the third parties appearing as claimants was only inserted in the bill for the purpose of formally enabling them to oppose, before the council chamber, the sending of the articles to a foreign country.”

This letter having been read to the section, a member proposed to extend to the 6th paragraph of article 5 of the bill the provision of the concluding portion of the 12th article. This addition to the text of article 5, being recommended by the same considerations as those just stated, was approved.

The bill was passed by the central section, all the members present voting in its favor.

• SCHOLLAERT,
  Chairman.
• Ed. Wouters,
  Reporter.

appendix.

Questions asked by the central section.—1st. Does No. 3 of article 1 of the bill include letters of credit and postage-stamps?

Replies of the minister of justice.—“1st. Article 1, No. 3. of the bill, reproducing the text of the corresponding provision of the law of April 5, 1868, is applicable, as is that provision, to forgeries committed in letter’s of credit, which is evidently comprised in the terms of articles 196 and 197 of the penal code, which are referred to by No. 3, and which provide for the punishment of the crime of forgery and the use of forgeries which have been committed in commercial papers or blank checks or in private letters. (See Parliamentary documents, 1867–’68, Appendix to No. 76.)

As to the counterfeiting of postage-stamps, it is comprised not only in No. 3, but also in No. 23 of article 1. The text thereof is identical with that of the law of April 5, 1868, which refers to articles 188 and 189 of the penal code, which provide for the punishment of the crime of counterfeiting postage-stamps and other adhesive stamps, and the use of such counterfeit stamps.”

2d. Why does No. 12 of article 1 only apply to attempts against individual liberty committed by private persons, without referring to the same acts committed by the agents of public authority?

“No. 12 of article 1 confines itself in the new law, as in the law of 1868, to attempts against individual liberty committed by private persons, and provided for by articles 434–442 of the penal code, because the same acts committed by agents of the public authority are included among crimes and offenses against the rights guaranteed by the constitution, (Title II, arts. 147 and 148 of the penal code,) and because crimes of this kind might, under certain circumstances, be of a political character.”

3d. What is the precise meaning of the word deception in No. 20 of the bill?

“3d. The precise meaning of the word deception in No. 20 of the bill is determined by the reference made by the law of 1868, same number, to articles 498–501 of the penal code. This word, therefore, includes deception practiced in regard to the identity, nature, origin, and quantity of things sold, as well as the adulteration of articles of food.”

Amendment made by the central section:

Art. 5, at the end. “And shall decide the case arising upon the claims of third parties appearing as claimants.”

1. The central section, presided over by M. Schollaert, was composed of Messrs. Santkin, Lefebvre, Van Iseghem, Pety de Thozée, Wouters, and Biebuyck.