Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 6, 1910
File No. 23700/38.
Minister Beaupré to the Secretary of State.
The Hague, June 20, 1910.
Sir: With reference to previous correspondence on the subject and with particular reference to the department’s telegram of the 13th instant, directing me to withdraw this legation’s application for the extradition of one Nicholas Knepper, a fugitive from the justice of the State of Illinois, I have the honor to transmit herewith copy of my letter to the minister of state, President of the Government oi the Grand Duchy, written in pursuance of the department’s telegraphic instruction, and copy and translation of his reply, this day received, of which also I inclose copy of my acknowledgment. I consider the matter, so far as regards this particular extradition, as now closed.
Referring to my No. 21, of the 12th instant, I have the honor to inclose herewith the précis of the law and procedure of the Grand Duchy in matters of extradition which I requested the secretary of the legation to make. This report, being more detailed than that section of Moore on Extradition which deals with extradition from the Grand Duchy, will enable the department in future cases to give such definite information to State or local authorities as will avoid the confusion and the needless expenditure of money arising in connection with the present case.
I have to refer particularly to that portion of Mr. Hibben’s report which deals with the transit of fugitives whose extradition has been granted by the Grand Duchy. Up to the present time this legation [Page 92] is still unaware of what steps, if any, should be taken by it to enable an agent of the United States, commissioned by the President of the United States to receive a fugitive, to leave the Grand Duchy. On receipt of the department’s cable of the 18th ultimo, stating that our embassy at Paris had advised the department that the French Government requires that all applications for the transit of a fugitive from justice be made through that embassy and supported by a copy of the judgment of condemnation, I wrote to our embassy in Paris requesting more particular information since, in the case under consideration, there could be no question of a “judgment of condemnation “of a person whose extradition was being sought that he might be arraigned for trial, and who had never been condemned. To this letter, of which I inclose copy, I have received no reply. Nevertheless I feel that this legation should be fully informed, for its future guidance, in regard to the requirements for the transit of fugitives of justice where extradition has been granted, not only across the territory of France, but across that of Belgium and Germany as well. I have, therefore, to request the department to obtain detailed information in this respect and to forward it to this legation for its files.
At the same time I have to refer to my Nos. 21 and 22,1 of the 12th and 17th ultimo, respectively, and to Mr. Hibben’s report, in regard to the interpretation put upon the term “burglary,” as used in both French and English texts of the treaty of 1883, by the chamber of arraignment of the superior court of the Grand Duchy.2 In view of the treaty taken by this body, and of future complications which may arise thereunder, it might be advantageous to open negotiations with the Government of the Grand Duchy for the purpose of future defining the term “burglary,” as used in the treaty of extradition with that country, as including what is known in Luxemburg law as vol á l’aide de fausses clefs.
I am, etc.,
Minister Beaupré to the Minister of State, President of the Government of the Grand Duchy of Luxemburg.
June 14, 1910.
Sir: I have the honor to refer to my note of the 10th instant, No. 66, and to my telegram to your excellency of to-day’s date in regard to the application for the extradition of one Nicholas Knepper, a fugitive from the justice of the State of Illinois, United States of America, which I had the honor of making to your excellency on April 11 last, and in confirmation of this telegram, a copy of which appears on the overleaf, to inform your excellency that I am in receipt of telegraphic instructions from my Government advising me that the governor of the State of Illinois states that no steps will be taken by the authorities of that State looking to the extradition of the fugitive Knepper and directing me to withdraw the application for his extradition, which I now formally do.
In thanking your excellency for the courteous effort to aid this legation in this complicated matter and for the consistent kindness and liberality which has characterized the attitude of the Government of the Grand Duchy throughout the negotiations,
I avail, etc.,
The Minister of State, President of the Government of the Grand Duchy of Luxemburg, to Minister Beaupré.
Luxemburg, June 18, 1910.
Mr. Minister: I have the honor to advise you of the receipt of the telegram and the note of the 14th of June, instant, notifying me that at the request of the governor of Illinois and in conformance with the instructions of the Government of the United States, your excellency sees fit to withdraw the application for the extradition of the said Nicholas Knepper.
I have not failed to advise the court of arraignment of this decision.
I beg you to believe, Mr. Minister, that in this matter, as ever, the Grand Ducal Government has had the most lively desire and the best intentions to be of service to the Government and the legation of the United States, and that it regrets sincerely that unforeseen circumstances and unexpected difficulties have intervened to complicate this matter.
For the minister of state, president of the Government, the official counselor of the Government:
Minister Beaupré to the Minister of State, President of the Government of the Grand Duchy of Luxemburg.
June 20, 1910.
Sir: I have the honor to acknowledge the receipt of your excellency’s courteous note of the 18th, acknowledging the receipt of my note and my telegram of the 14th instant, formally withdrawing application made by this legation for the extradition of one Nicholas Knepper, a fugitive from the justice of the State of Illinois, United States of America.
In thanking your excellency for the courteous expressions of good will contained in the note which this acknowledges, I assure your excellency that I have not failed to forward a copy thereof to my Government.
I avail, etc.,
Minister Beaupré to Ambassador Bacon.
The Hague, May 20, 1910.
My Dear Colleague: I am in receipt of a telegram from the Secretary of State advising me that you have reported to the Department of State that the French Government will grant permission for the transit of Nicholas Knepper, a fugitive from the justice of the State of Illinois, whose extradition has been requested of the Government of the Grand Duchy by this legation, on condition that application be made for the transit through your embassy and that the same be supported by a copy of the judgment of condemnation. I understand, further, that when the permission for transit is granted the fugitive Knepper is to be surrendered by the authorities of the Grand Duchy at the French frontier to French agents, who will deliver the fugitive to the agent of the United States at a port to be agreed upon.
Will you be kind enough to inform me whether by a judgment of condemnation is meant an authenticated copy of the decision of the Government of the Grand Duchy in the matter of extradition; or if not, just what is desired to satisfy the French Government? I should also be glad to be informed, in case a document of this nature be required by the French Government, what it would consider adequate authentication of the same.
For the documentation of the legation on this subject I should greatly appreciate an excerpt from the French law or laws upon which the Government’s decision in respect of the said fugitive is based.[Page 94]
You will of course advise me of what you wish to be informed by the legation in regard to the date and place of the delivery of Knepper by the agents of the Grand Duchy to the French agents, should the Grand Duchy decide to grant the extradition of the fugitive.
I am, etc.,
Mr. Hibben to Minister Beaupré.
June 18, 1910.
Sir: In response to your verbal request I am inclosing, for the use of the legation and the information of the Department of State, a more comprehensive report of the law and procedure of the Grand Duchy in matters of extradition than that contained in Moore on Extradition, with especial reference to the difficulties having arisen in the case of the extradition of Nicholas Knepper, now pending. In this matter I venture to suggest that, in view of the present attitude of the court of arraignment of the Grand Duchy toward the interpretation of the treaty of 1883 in respect of the meaning of the term “burglary” as used in both texts, a protocol further and more accurately defining the term seems advisable. In the matter of transit from the Grand Duchy I may add that if some practical understanding could be reached with one of the border States of the Grand Duchy in respect of transit it would greatly facilitate the operation of extradition from the Grand Duchy in the future. It would seem reasonable also that the legation be put in possession of the latest laws of those States in the matter of the transit of fugitives from justice whose extradition has been granted by the Grand Duchy.
I have, etc.,
A report on the law and procedure of the Grand Duchy of Luxemburg in the matter of extradition.
As to who may be extradited.
By article I of the law of March 13, 1870, the Government of the Grand Duchy of Luxemburg may grant extradition in the absence of a treaty and, by analogy, accepted in principle by the Government of the Grand Duchy,1 may grant extradition for an offense not provided for in a treaty, but this power is entirely optional with the Government of the Grand Duchy and may be exercised only upon condition of a pledge of reciprocity on the part of the country requesting extradition under either of these circumstances. Even in cases where reciprocity may be guaranteed, Article II of the same law provides that extradition may be granted only upon the production, in support of the request, of either the original or a duly certified copy of a sentence of court, an order of the council chamber, a finding of a grand jury, emanating from a court having jurisdiction, formally decreeing the condemnation, or binding over to criminal jurisdiction for trial, the person arrested or accused. It has been claimed, but without any serious adoption of the view, that the reciprocity for which provision is made in Article I of the law in question is a reciprocity to be expressed only in treaty form.
By the law of March 13, 1870, the Government of the Grand Duchy is not pledged to the extradition, on request of a foreign country, of a subject of the Grand Duke of Luxemburg. This is also especially stipulated in Article V of the treaty of extradition between the United States and the Grand Duchy of October 29, 1883. In neither the law of 1870 nor the treaty is this mandatory on the Government of the Grand Duchy; extradition of a subject of the Grand Duke may be granted if the Government of the Grand Duchy so see fit. The law of January 18, 1879, however, provides that a Luxemburg subject may be prosecuted in the Grand Duchy for offenses committed elsewhere.
If any difficulty arise over the question of the nationality of the person whose extradition is sought, the public prosecutor, following Article LXXIV of the law of February [Page 95] 18, 1885, must bring an action in the civil courts, which alone are competent to decide questions of nationality.
Not only those are subjects of the Grand Duke of Luxemburg who are born of Luxemburg parents in the Grand Duchy, but their children are also considered Luxemburg subjects, though born abroad, unless within the year following their attainment to majority these children shall have changed their allegiance. By the law of February 5, 1890, this is also true of the children born of a Luxemburg woman, though she herself have lost her Luxemburg nationality by marriage or otherwise. Children of foreigners born in the Grand Duchy may become subjects of the Grand Duke if, within the year following their attainment to majority they express the desire so to become and their intention to fix their domicile in the Grand Duchy. The subject of the Grand Duke who shall have lost his nationality as a Luxembourgeois may regain it by a similar declaration. By Article X of the constitution of the Grand Duchy, October 17, 1868, the minor child of a subject of the Grand Duke may himself become a subject of the Grand Duke if, within the two years following his attainment to majority, he so declare his desire.
If, then, the person whose extradition is sought fall within any of these categories by which Luxemburg nationality is determined, the Government of the Grand Duchy is not obliged to grant his extradition. The supreme court of justice of the Grand Duchy has decided1 that the Luxemburg Government may surrender to foreign governments only persons accused of crimes committed on the territory of the State seeking the extradition, only if the person whose extradition is sought “n’a pas qualité de luxembourgeois”—that is to say, is not a Luxemburg subject. This is not, however, as has been already said, in accordance with the law of March 13, 1870, upon which this decision was based.
If, on the other hand, the person whose extradition is sought has not, at the time of the commission of the crime with which he is charged, made the declarations or declaration for which provision is made in the laws above quoted governing the nationality of subjects of the Grand Duke, he may be extradited, providing the time stipulated by law during which such declarations or declaration may be made have elapsed. In case such period of time allowed him within which to make the declarations or declaration have not elapsed, though under arrest, he may even then make his declarations or declaration and, by becoming a Luxembourgeois, escape extradition. There is, naturally, considerable question on this point.2 In case of conflict between the laws of the Grand Duchy and the laws of foreign countries in regard to the nationality of the person whose extradition is sought, the Luxemburg courts are bound solely by the laws of the Grand Duchy in deciding as to the nationality of the fugitive.1
In case the person whose extradition is sought is neither a citizen of the United States nor a subject of the Grand Duke of Luxemburg, there is no provision in the Luxemburg law either for or against his extradition. In a number of the extradition treaties which the Grand Duchy has made with other countries this case is provided for.3 The last paragraph of Article III of the treaty of extradition with the United States provides that “the consent of that Government shall be required for the extradition of the accused to a third country.” (“Le consentement de ce Gouvernment sera requis pour permettre l’ extradition de l’inculpé á unpays tiers.”) From that clause, however, it does not appear that in case of a request for the extradition of a citizen or subject of a country not party to the treaty in question, this provision would be mandatory on the Grand Duchy to the extent of requiring the extradition of such a fugitive even if the consent of the third Government were given. By the wording of the treaty the action of the Government of the Grand Duchy in such case would appear to be optional with it.
If the person whose extradition is sought sign a declaration by which he expresses his willingness to be extradited without awaiting the formalities of extradition and consent, expressly and freely, to be tried and, if found guilty, punished for any crime whatever without invoking the protection of an international treaty, he may be tried for any offense whatever, even for those not covered by the extradition treaty between the Grand Duchy and the State to which he is surrendered by virtue of this declaration.4[Page 96]
crimes for which extradition may be granted.
By the law of March 13, 1870, extradition may be granted only for the crimes mentioned therein. These are: Murder; poisoning; parricide; manslaughter; rape; arson; counterfeiting, or the manufacturing of public bills or bank notes; the use or circulation of counterfeited or falsified bills or bank notes; falsification of public documents, commercial or bank scrip; the employment of forged deeds; forgery of private documents; the employment of false documents; forgery of passports, waybills, and certifications; the employment of false or falsified passports, waybills, or certifications; the use of false money; perjury; theft, including the carrying off and destruction of the articles stolen; swindling; extortion; embezzlement of public funds; fraudulent bankruptcy; formation of associations for illegal ends; threats of crime against the person, punishable by death, by hard labor, or by incarceration in a penitentiary; abortion; bigamy; illegal arrest and detention of the person; kidnapping; harboring, hiding, substituting, or supplanting a child; exposure or abandonment of a child; kidnapping of a minor; crimes against decency, committed with violence; crimes against decency, without violence, with the aid of a person of a child of either sex of less than 14 years of age, or of an individual legally incapable of giving consent or incapable of resistance; crimes against morals by exciting, facilitating, or assisting, habitually, for the satisfaction of the passions of others, the debauch or the corruption of minors of either sex; battery or blows struck with premeditation or from ambush or having caused inability to perform personal work for a period of more than 20 days; battery or blows, voluntarily struck, resulting in death, without intention to cause death; train wrecking or the attempt to wreck a train; fraud; deceit; subornation or perjury; counterfeiting the seals of State; counterfeiting or falsifying stamps, dies, molds, or of marks of State; the employment of counterfeit seals or of counterfeit or falsified stamps, dies, molds, or marks of State; the misappropriation of true seals, stamps, dies, molds, or marks; bribery; destruction of public works or the defacement of public monuments; destruction of registers, titles, documents, and other papers; the pillage or ravage of goods, merchandise, personal property, committed in association with others in a band, or by open force; opposition to the execution of public work; devastation of crops either growing or planted; the destruction of trees or grafts; destruction of agricultural implements; the destruction or poisoning of cattle or other animals.
A similar provision as to the offenses for the commission of which extradition may be granted is made in the treaty of extradition between the United States and the Grand Duchy of Luxemburg (Art. III).
There is no provision, however, in the law of 1870 which specifies that the crime for which extradition is granted by one country, party to a treaty, shall in any way necessarily correspond to a crime, or crimes, for which extradition may be granted by the other party to the same treaty. A provision of this sort is, nevertheless, included in Article I of the treaty with the United States. Article II, section 10, of the treaty, contains an apparently curiously unnecessary clause, providing for the extradition of any person charged with embezzlement “when the crime is subject to punishment by the laws of the place where it was committed.” It is difficult to conceive how otherwise extradition could be sought.
The treaty provides that extradition may be granted for the attempt to commit any of the crimes therein enumerated when such attempt is punishable by the laws of both contracting parties. Under the penal code of the Grand Duchy, Article LI, a criminal attempt is defined as “the purpose to commit a crime or misdemeanor when the same shall have been made manifest by overt acts which constitute the beginning of the execution of the crime or misdemeanor, and which have not ceased or failed of their effect save through circumstances independent of the volition of the person intending to commit the crime.” The attempt to commit a crime is punishable by the penalty immediately inferior to that provided for the commission of the crime itself, but the attempt to commit misdemeanor is punishable only in cases to be determined by a law which will fix the penalty. The law of 1870 does not specifically provide for extradition in case of attempts to commit crimes or misdemeanors, but from the article of the Penal Code quoted above, it would appear that these, being of themselves, crimes or misdemeanors, extradition with the United States will lie in cases of such attempts to commit crimes or misdemeanors as are, by the laws of the United States or the State wherein the crime or misdemeanor shall have been committed, to be considered as themselves crimes or misdemeanors.
The extradition treaty with the United States makes, in Article I, especial provision for the extradition of those condemned for or charged with complicity in the commission of the crimes enumerated therein. But the proviso of that article makes extradition depend upon the presentation of such evidence of criminality as, according [Page 97] to the laws of the country where the fugitive be found, would justify his apprehension and commitment for trial had the offense been committed in the latter country. It becomes necessary, therefore, to examine the criminal law of the Grand Duchy, as applied to accomplices, to know how far complicity is a crime in the Grand Duchy.
Article LXVI of the Penal Code of Luxemburg provides that punishment, as authors of a crime or misdemeanor, shall be inflicted upon:
- “1. Those who have executed the crime or cooperated in its execution.
- “2. Those who, by any act whatsoever, shall have lent to the execution of a crime such aid that, without their assistance, the crime or misdemeanor could not have been committed.
- “3. Those who by gifts, promises, menaces, abuse of authority or of power, guilty designs or machinations, shall directly have provoked said crime or misdemeanor.
- “4. Those who, whether by speeches in meetings or public places, or by bills posted up, or by writings, whether printed or not, sold or distributed, shall directly have provoked the commission of said crime or misdemeanor.”
And the three succeeding articles of the same code provide that the following shall be punished as accomplices of a crime or misdemeanor:
“Art. LXVII. Those who shall have been given instructions for committing it.
- “2. Those who shall have procured arms or instruments or other means which have served in the commission of the crime or misdemeanor, knowing that they were so to serve.
- “3. Those who, beside the case for which provision is made in paragraph 3 of Article LXVI, shall have knowingly aided or abetted the author or the authors of a crime or misdemeanor in the acts which the latter have prepared or facilitated, or in those which the latter have consummated.
“Art. LXVIII. Those who, knowing the criminal conduct of offenders practicing brigandage or violence against the existence of the State, the public peace, persons, or property shall habitually have furnished them lodgment, place of hiding, or of meeting.
“Art. LXIX. Accomplices of a crime are punishable by the penalty immediately inferior to that which would have been incurred had they been the authors of the crime itself.
“2. The punishment inflicted on the accomplices of a misdemeanor shall not exceed two-thirds of that which would have been inflicted had they been the authors of said misdemeanor.”
Article IV of the extradition treaty with the United States makes especial provision that extradition may not lie in cases of political crimes or offenses, an attempt against the life of the head of the Government or against any member of his family, when such an attempt comprises the act either of murder or of assassination or of poisoning, not being considered a political crime or an act with such an effense. Political offenses are defined in the Penal Code of the Grand Duchy to include (1) the criminal attempt of the formation of a plot for the purpose of destroying or changing the form of government or the order of succession to the throne, or the incitement of the citizens or inhabitants to take up arms against the authority of the Grand Duchy or the chamber oi deputies; (2) the bearing of arms by a Luxembourgeois against the Grand Duchy; (3) entering into relations with foreign Governments or their agents with the purpose of inducing them to commit hostilities or engage in war against the Grand Duchy, or of furnishing them with the means thereto; (4) the act or plot to aid the enemy in entering the territory of Luxemburg, to deliver to him cities, places, magazines, or arsenals belonging to the State; to furnish him with soldiers, men, money, supplies, arms, or ammunition; to aid the progress of his arms upon the Grand Ducal territory or against the forces of Luxemburg, by shaking the fidelity to the State and the Grand Duke of officers, soldiers, or citizens; (5) correspondence with the subjects of an hostile power for the purpose of furnishing the enemy with information of prejudice to the military or political situation of the Grand Duchy or its allies in action against a common enemy; (6) the deliberate betrayal of a secret of State; (7) the harboring of a spy; (8) hostile acts not approved by the State, exposing the State to hostilities on the part of a foreign power; (9) the formation of armed bands to commit criminal attempts against public order; (10) the excitement or the plot to excite civil war by arming the inhabitants of the Grand Duchy against one another; (11) unauthorized levy of troops or distribution of arms or ammunition; (12) the arraignment or arrest of a deputy or of a member of the Government in defiance of the prerogatives accorded them by Articles LXVIII, LXIX, and CXVI of the constitution.1[Page 98]
provisional arrest and detention.
There is no provision in the treaty of October 29, 1883, governing the conditions under which requests for the provisional arrest and detention of a fugitive may or should be made of the Grand Duchy. The law of March 13, 1870, however, makes the following provision for the necessary procedure:
“Art. IV. It shall be possible to cause the provisional arrest of a fugitive in the Grand Duchy for one of the acts enumerated in Article I,1 upon the exhibition of a warrant of arrest by the competent foreign authority and made executory by the council chamber of the arrondissement of the place of residence of the fugitive or the place where he may be found, based upon official notice given the Luxemburg authorities by the authorities of the country where the crime or misdemeanor shall have been committed. In case of crime this warrant may be issued by the State’s attorney. However, in this case, the person detained shall be released if, at the expiration of 15 days from his arrest, in case of a request from the government of a border State, and at the expiration of one month, in case of a distant country, he has not been advised of the issuance of a warrant of arrest by the competent foreign authority.
“Art. V. A foreigner under provisional arrest shall be set at liberty if, at the expiration of two months, he has not been notified of a sentence or order of condemnation, or of an order of the council chamber, or of a finding of a grand jury, or of a record of criminal procedure, emanating from competent authority, and formally decreeing the appearance, or of itself serving legally to require the appearance of the accused before a court or body having criminal jurisdiction.”
It will be remarked that these provisions require the release of the prisoner in default of the production, within the time set, of one or more of the documents mentioned therein. Both Articles II of the same law and VII of the treaty of extradition make definite provision in respect of the documents the presentation of which, duly authenticated, must accompany a formal request for extradition. The “official notice given the Luxemburg authorities by the authorities of the country, where the crime or misdemeanor shall have been committed,” should therefore be notice of the issue of one or more of the documents enumerated in Article VII of the treaty which are to be presented later, in duly authenticated form, to be used upon the application for the extradition of the fugitive.
There is no provision, either of the treaty or of the law of the Grand Duchy which requires that the request for the provisional arrest and detention of a fugitive from justice shall be made through a diplomatic channel. Ulveling2 holds, therefore, that a distinction may be made in the execution of the request for provisional arrest and detention, by the magistrate or other authority to which the request may be addressed. In case the request come through diplomatic channel, the magistrate or other authority should execute it at once. If, however, the request emanate from another source, the magistrate or other authority receiving it is invested, by the irregularity of the procedure, with the duty of examining the request, and, in case of doubt, referring it to the Government of the Grand Duchy, which will, in turn, advise the Government of the country from which the request has arisen. In the extradition treaties between the Grand Duchy and France, Italy, and Austria this distinction has been embodied in the treaties themselves. The treaty with the United States is the sole extradition treaty with the Grand Duchy in which no provision whatever is made in regard to the manner of securing provisional arrest. In that case it would seem best that, to avoid difficulties and misunderstandings, the request for the provisional arrest and detention of a fugitive found in the Grand Duchy pass through diplomatic channel.
The method of securing provisional arrest and detention in the Grand Duchy is as follows:
If the provisional arrest has been sought on the production of a warrant of arrest issued by a foreign authority, this warrant is made executory by the council chamber of the arrondissement court of the place of residence of the fugitive or the place where he may be found, which at once becomes effective throughout the Grand Duchy. Similarly, if the provisional arrest has been sought on notice of the issue of one of the documents, the production of which is required to support a formal request for extradition, the examining magistrate of the place of residence of the fugitive or of the place where he may be found, or, in case of crime, also the State attorney, may issue the warrant of arrest which, according to Article XCVIII of the Code of Criminal Examination, likewise becomes effective throughout the Grand Duchy.
The matter of the legal duration of detention under provisional arrest is settled by Article IV of the law of March 13, 1870, in the absence of any provision in the treaty. [Page 99] The day of arrest, however, is not to be counted as forming part of the period at the end of which the prisoner may be released.
There is nothing in the law of the Grand Duchy to permit the rearrest of a fugitive discharged from provisional arrest and detention on the production of a document which may be used upon an application for extradition.
A foreigner in the Grand Duchy, under provisional arrest, may, upon making application to the council chamber, be admitted to bail, or given provisional liberty, where a reciprocal privilege obtains in the country at the request of whose government the prisoner is held. This is the case, however, only so long as the detention is provisional; once a document to justify extradition has been presented and the prisoner notified of the presentation, release on bail is no longer possible in any case.
procedure of extradition.
The treaty between the United States and the Grand Duchy of Luxemburg provides that “requisitions of the surrender of fugitives from justice shall always be made through a diplomatic channel.” The expression “a diplomatic channel” is sufficiently broad to cover either direct correspondence between the ministry for foreign affairs of the Grand Duchy and the Department of State, or recourse to such foreign diplomatic officers as may be willing to act for that purpose. As the Grand Duchy has diplomatic officers only at Berlin and Paris, requests for extradition for the United States on the part of the Grand Ducal Government should be made in one of these two ways. It is held in the Grand Duchy that the arrangement between Luxemburg and the Netherlands of 1880, whereby the diplomatic officers of the latter Government are empowered to act in certain matters, not including affairs of a political nature, on behalf of the Grand Duchy, does not apply to requests for extradition, since these, arising as they do from the execution of treaties of extradition between one nation and another, are invested with a political character.1
By the same article of the treaty quoted above, however, it is provided that the authentication of documents to be used upon an application for extradition shall be by the minister or consul of the United States or by the minister or consul charged with the interests of Luxemburg, respectively,” which would seem plainly to imply that not only the diplomatic but consular officer of the Netherlands, acting under the authority of the arrangement effected by an exchange of notes between Baron de Blochausen and Baron de Lynden de Sandenburg, January 6 and 7, 1880, may be assumed to have been invested, under the treaty, with the power to make requisitions for extraditions from the United States on behalf of the Grand Duchy.
The formal request for extradition should be accompanied by the documents enumerated in Article VII of the treaty of extradition, duly authenticated, as in proper and legal form, by the diplomatic officer accredited to the Government of the Grand Duchy, or, in the absence of such diplomatic officer, by the consul of the United States holding an exequatur from the Government of the Grand Duchy. The following form of authentication has been found acceptable to the Government of the Grand Duchy:
American Legation to the Grand Duchy of Luxemburg, April 11, 1910.
I, Arthur M. Beaupré, envoy extraordinary and minister plenipotentiary of the United States of America to the Grand Duchy of Luxemburg, hereby certify that the annexed papers, being certified copies of the warrant of arrest and the formation and depositions upon which the warrant was issued, together with a transcript of certain proceedings in the superior court of Cook County, of the State of Illinois, by which one Nicholas Knepper was naturalized a citizen of the United States of America on the 29th day of June, 1906, proposed to be used upon an application for the extradition of one Nicholas Knepper, otherwise known as Nicholas Knuepper, charged with the crime of burglary, alleged to have been committed in the State of Illinois, United States of America, are properly and legally authenticated so as to entitle them to be received in evidence for similar purposes by the tribunals of said State and of the United States of America, as required by the act of Congress of August 3, 1882.
In witness whereof I have hereunto set my hand and caused to be affixed the seal of this legation, this 11th day of April, A. D. 1910.
(Signed) A. M.
Envoy Extraordinary and Minister Plenipotentiary of the United States of America to the Grand Duchy of Luxemburg.
Under the treaty these documents should consist, in case of the person whose extradition is sought and who has “been convicted of a crime or offense, of a copy of the sentence of the court in which he may have been convicted, authenticated under its seal and attestation of the official character of the judge by proper executive authority,” and in case the fugitive be merely charged with the commission of a crime or misdemeanor, of “a duly authenticated copy of the warrant for his arrest in the country where the crime may have been committed, and of the depositions upon which such warrant may have been issued.”
Besides these, however, in order to fulfill completely the stipulations of the treaty, the documents in question must show, in case of necessity, (1) that the fugitive is not a subject of the Grand Duke of Luxemburg; (2) the identity of the person under arrest with the person charged with the commission of the crime; (3) that the prosecution of the fugitive is based upon such evidence of criminality as, according to the laws of the Grand Duchy, would justify his apprehension and commitment for trial if the crime were committed in the Grand Duchy; (4) that the crime with which the fugitive is charged is a crime falling under those enumerated in Article II of the treaty. These may be considered separately.
As Article V of the treaty of extradition provides that neither of the contracting parties shall be bound to deliver up its own citizens or subjects, in case of doubt the documents accompanying the request for extradition should show conclusively that the fugitive whose extradition is either a citizen of the United States or a citizen or subject of some third State. In the former case a duly certified copy of the record of naturalization of the fugitive will suffice. In the latter case, since, by the terms of the treaty, the consent of the Government of the third State of which the fugitive may be a subject or citizen is a condition precedent to the extradition, the consent of that Government, with its consequent admission that the fugitive is a subject or citizen thereof, should suffice.
In case, however, of doubt or contest by the fugitive of his extradition, on grounds that he is a subject of the Grand Duke of Luxemburg, the civil courts, as has already been stated, must decide the matter.
Such proofs of the identity of the fugitive with the person charged with the crime must be presented as shall convince the authorities of the Grand Duchy. These should properly accompany the documents to be used, for, in case of contest by the fugitive on grounds of mistaken identity, it is difficult to secure additional evidence in the time allowed by the laws of the Grand Duchy. In case of extreme doubt, it is well within the powers of the authorities of the Grand Duchy to demand that the identification of the fugitive be by witness. Naturally the examination of the fugitive by the proper judicial authority, for which provision is made in Article VII of the treaty, is intended to aid the establishment of the identity of the fugitive; but it may not accomplish this end, in which case the authorities of the Grand Duchy mentioned in what follows are the sole judges of the sufficiency of the proof of identity offered.
The evidence of criminality required for extradition is provided in Article I of the treaty to be such “as, according to the laws of the place where the fugitive or the person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime had been there committed.” If the fugitive have already been condemned a duly certified copy of the writ of condemnation would suffice for purposes of extradition; but if he be charged with the commission of one of the offenses enumerated in Article II of the treaty, it is plain that his extradition will be granted only upon presentation of such documents, in the nature of evidence of criminality, as will satisfy the authorities of the Grand Duchy according to the law of their country. These documents may be in the form of the depositions upon which the warrant of arrest has issued, copies of which, following Article VII of the treaty, are to be presented in support of the request for extradition. Whereas the authorities of the Grand Duchy are the sole judges of whether the documents so presented in support of the request for extradition constitute sufficient evidence of criminality according to the laws of the Grand Duchy, it may be stated, in general, that such evidence as would be sufficient to satisfy the examining magistrate or magistrates, or the grand jury charged with examining the evidence, and cause him or them to bind the accused over for trial to a court having criminal jurisdiction would be regarded as sufficient evidence of criminality in the Grand Duchy as in the United States or any one of them. Unless with the consent of the accused, however, depositions of the following persons may not be received according to the law of the Grand Duchy.1
- “Sec 1. The father, mother, grandfather, grandmother, or any other ascendant of the accused or any one of those accused with the accused who may be present and arraigned at the same trial.
- “Sec. 2. The son, daughter, grandson, granddaughter, or any other descendant of the same.
- “Sec. 3. Brothers or sisters of the same.
- “Sec. 4. Brothers-in-law or sisters-in-law of the same.
- “Sec. 5. Wife or husband of the same, even though divorced.
- “Sec. 6. Informers for whose information pecuniary recompense is given by the law.”
It is necessary, of course, that the documents submitted in support of a request for extradition state clearly the crime with which the fugitive is charged and define the crime as one of those for which extradition is to be granted under Article II of the treaty. It is equally necessary that there be consistency between the depositions accompanying the copy of the warrant of arrest and the crime charged in said warrant; that is to say, that the depositions supporting the warrant should themselves point not only to the commission of the particular crime with which the warrant charges the fugitive, but should not point to the commission of a crime other than that with which the fugitive is charged in the warrant. The difficulties that have arisen in the sole case of extradition which has reached the stage of being considered by the judicial authorities of either country, the Knepper case, now pending, have arisen from a lack of consistency, in the eyes of the Luxemburg law, between the crime charged in the warrant and the crime to the commission of which the depositions supporting the warrant point.
Briefly, this case may be stated thus: Nicholas Knepper, formerly a subject of the Grand Duchy of Luxemburg, but naturalized a citizen of the United States, is charged with the commission of the crime of burglary in the State of Illinois. The warrant of arrest so states the crime. In the depositions supporting the warrant, however, it appears that the fugitive is charged with having entered the apartment of one Bessie Shay by means of a false key, or at least by means of a key not lawfully in his possession. Now, in Luxemburg law there is no crime corresponding exactly to burglary, hence the use of the word “burglary” in English in both texts of the treaty. But in the English text this term is further “defined to be the act of breaking and entering by night into the house of another with the intent to commit felony,” and in the French text as consistant dans l’action de s’introduire mutamment et avec “effraction ou escalade dans l’habitation d’autrui avec une intention criminelle,” which, however close a translation of the English text, leaves out of consideration the fact that, according to Luxemburg law, following which alone the sufficiency of the evidence of criminality is to be judged, that element of premeditation essential to the crime of burglary and manifested by the act of “breaking and entering by night into the house of another,” is more particularly defined as including the use of false keys; and that the French text of the treaty employs, in its translation of the English text, only two of the three terms used to define a theft of this character, to wit: “Commis à l’acte d’effraction, d’escalade ou de fausses clefs.” It was therefore contended by the chamber of arraignment of the superior court of the Grand Duchy, not without reason, that, forced by the treaty itself to follow Luxemburg law in judging the evidence of criminality presented in the documents submitted in support of the application for extradition of the fugitive, the evidence, if tending to show criminality at all, tended to show the commission of a crime for which, according to Luxemburg law, no provision is made in the treaty. It were idle to reply that the crime of burglary in the United States includes all three of the elements of the crime of theft without violence or menaces, which is more particularly defined in section 467 of the Luxemburg Penal Code, as committed by means of breaking, climbing, or false keys, since, by Article I of the treaty, extradition may be granted only “upon such evidence of criminality as, according to the laws of the place where the fugitive or the person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime had been there committed,” and since, in the judgment of the court, required by law to give its opinion in the premises, a person charged upon such evidence as was submitted would undoubtedly be apprehended and committed for trial in the Grand Duchy, but would be accused of a crime which, in the judgment of that court, is not included in those for which extradition may be granted according to the treaty. Given a situation of this sort and there is but one remedy, namely, that, by a protocol between the two Governments, the crime of burglary be defined as including all the elements of that offense described in the Penal Code of the Grand Duchy as “theft without violence or menaces, committed by means of breaking, climbing, or false keys.”
From this unfortunate example it becomes evident that not only the law of the United States, or of the State where the crime may have been committed must be considered in preparing the documents to be used upon application for extradition from the Grand Duchy, but also the laws of the Grand Duchy in so far as the authorities of the Grand Duchy are, by the treaty, the judges of the evidence of criminality shown by these documents.[Page 102]
Moreover, by Article IX of the treaty and Article VIII of the law of 1870, extradition may not be granted for anoffense if prescription have run according to the laws of the country to which the requisition is addressed. It is therefore necessary that the documents submitted in support of an application for extradition show that prescription, according to the laws of the Grand Duchy, has not run. The laws of the Grand Duchy in the matter of prescription are:
“637. The criminal and the civil actions resulting from a crime incurring the penalty of death or of perpetual punishment, or from any other crime carrying a corporal or ignominious penalty, shall become prescribed after the passage of 10 years, counting from the day of the commission of the crime, if during that time no act of prosecution or of judicial inquiry have been made.
“If during that time there have been initiated acts of prosecution or judicial inquiry, upon which no judgment have been rendered, the criminal and civil actions shall not become prescribed until the passage of 10 years from the last of these acts, even for those not implicated in such acts of prosecution or judicial inquiry.
“638. In the two cases for which provision is made in the preceding article, and following the distinctions of epochs therein established, the duration of prescription shall be reduced to the passage of three years, if it be a matter of a nature to be punished correctionally.”
Prescription of penalties inflicted is fixed by Article XCI of the penal code at 20 years from the date of the decree or the judgment in cases of crimes and at 5 years in cases of correctional punishments. In case of an escaped prisoner, prescription, dating from the day of his escape, will run as above, save that in cases of crime the period of 20 years shall be reduced by whatever portion of his sentence the prisoner shall have served beyond 5 years, and in case of a correctional punishment the period of 5 years shall be reduced by whatever portion of his sentence the prisoner shall have served beyond 2 years.
granting of extradition.
Article VII of the treaty of extradition provides that, the preliminary formalities having been completed, “the proper authority in Luxemburg may then issue a warranr for the apprehension of the fugitive, in order that he may be brought before the propet judicial authority for examination.” If it should then be decided that, according to the law and the evidence, the extradition is due pursuant to the treaty, the fugitive may be given up according to the forms presented in such cases. The formal request for extradition, coming through the proper diplomatic channel, is accompanied by documents in support thereof to which consideration has already been given in this report. These are addressed to the minister of state, President of the Government of the Grand Duchy, charged with its foreign affairs. By his office the documents are examined to ascertain whether they are in proper form, duly authenticated, emanating from proper authorities and, in general, in conformance with the provisions of the treaty. In case of doubt upon any of these points the ministry for foreign affairs of the Grand Duchy is expected to resolve them before proceeding further in the matter.
Finding the documents submitted in support of the request for extradition in good order, the minister of state, who is chief of the department of justice, transmits them to the attorney general, who is charged with examining the documents from the point of view of the law of the Grand Duchy, as well as from the point of view of their legal regularity according to the law of the United States.
If the attorney general find the documents in order, in his judgment, the accused is then interrogated and given an opportunity to evade the formalities of extradition. Should he avail himself of this opportunity, his declaration of his intention so to act is signed in duplicate by the prisoner and attested by the administrator of prisons. The extradition of the fugitive then becomes voluntary, and the fugitive is therefore delivered, with one of the duplicates of the declaration, to the agent empowered to receive him.
If, however, the fugitive desire to pass through the regular process of formal examination, the attorney general sends the request for extradition with its accompanying documents to the chamber of arraignment of the superior court of the Grand Duchy and calls upon that body to give its opinion thereon.
Article II of the law of 1870 provides that “extradition shall be granted * * * only after an opinion of the chamber of arraignment of the superior court of justice.
“The hearing shall be public, unless the fugitive demand a trial behind closed doors. The prosecuting attorney and the fugitive shall be heard. The latter may avail himself of counsel.
“Within a fortnight dating from the receipt of the documents they shall be returned, with an opinion for which the reasons are given, to the director general of justice, [Page 103] who shall pronounce a decision in conformity with a deliberation taken by the Government in council.
“Extradition may not be granted save in conformity with the opinion pronounced by the chamber of arraignment.
“As for foreigners, authorized by grand ducal decree to establish in the Grand Duchy, their extradition may not be granted until ‘this decree shall have been rescinded.’”
From this it will be seen that in the Grand Duchy of Luxemburg, however, essential to the granting of extradition an opinion in that sense pronounced by the chamber of arraignment of the superior court may be, it is actually the executive power which has the deciding judgment in matters of extradition, acting upon the opinion expressed by the judiciary. This judicial investigation, though it have nothing whatever to do with the guilt or innocence of the prisoner, must examine into those questions of nationality, identity, and sufficiency of the proofs of criminality which have already been discussed. In cases of doubt as to nationality, as has previously been stated, the civil courts of the Grand Duchy are alone empowered to decide the matter.
The force of the provision of the law of 1870, quoted above, which declares that extradition may not be granted save upon the advice of the chamber of arraignment, is to bind the Government, which has the deciding power, to refuse extradition should the decision of the chamber of arraignment be unfavorable, while not binding it to grant extradition should the judicial decision be favorable thereto. The reason for this peculiar provision has ceased to exist, but it remains the law of the Grand Duchy. Another practical effect, however, evolves therefrom. As the opinion of the chamber of arraignment is not a judgment of court, but an advice given for the guidance of the executive portion of the Government, it need not be made public. It may therefore be communicated to the Government, with its reasons, without being communicated to the prisoner. In this way, should it seem to the Government of the Grand Duchy that the country seeking the extradition may alter, improve, strengthen, or withdraw its application for extradition, the opinion of the chamber of arraignment of the Grand Duchy may be communicated to the diplomatic agent of the country seeking the extradition of the prisoner for appropriate action in view of this opinion.
The decision to grant extradition having been reached by the Government and pronounced by the director general of justice, extradition is decreed in the following form:
The Minister of State, President of the Government.
In view of the request of the —— Government looking to obtain the extradition of one [name, surname, date and place of birth, occupation, and nationality], charged with——;
In view of the law of March 13, 1870, on the extradition of foreign criminals, as well as law of October 29, 1883, approving the treaty of extradition between the Grand Duchy and the United States of America;
In conformity with the opinion of the chamber of arraignment of the superior court of justice;
The attorney general having been heard;
After due deliberation of the Government in council—
- Art. I. The extradition of ——, charged with the crime of ——, to the —— Government.
- Art. II. This decree shall be sent to [the diplomatic representative of the Government seeking extradition] and to the attorney general, who is charged with its execution.
(Signed) Minister of State, President of the Government.
The execution of this decree should follow immediately upon its issue. The fugitive must be escorted to the frontier of the Grand Duchy at a point indicated by the Government seeking his extradition, where he must be delivered to the agent of the latter. If he should escape and again return to the Grand Duchy no further formalities are necessary than to advise the authorities of the Grand Duchy to have him again delivered in the same way to the agent of the Government seeking his extradition.
Express provisions are made in the treaty for the payment of the expenses of arrest, detention, and transportation of fugitives and for the disposition of articles, found in their possession, which may have been obtained through the commission of acts with which they may be charged.[Page 104]
The matter of transit of the territory of the Grand Duchy by a fugitive from the justice of a second country whose extradition has been granted by a third country is regulated by Article III of the law of 1820, which reads as follows:
“Extradition by way of transit of the grand ducal territory may, nevertheless, be granted without taking the opinion of the chamber of arraignment on the simple production, in original or in authenticated copy, of one of the documents of procedure mentioned in the preceding article when it shall have been sought by a foreign State of another foreign State, each bound with the Grand Duchy by a treaty including the offense which has given rise to the extradition and when said transit shall not have been forbidden under the terms of Articles VII and VIII of this law.”
The transit of a fugitive across Luxemburg territory must be in the custody of Luxemburg police agents, who will receive the fugitive at a point indicated and deliver him at a point indicated to the authorized agent of the Government claiming the fugitive, or in case of local laws in the country at whose frontiers the fugitive is to be delivered, to the agents of the border country, who will in turn deliver him to the country from whose justice he is a fugitive.
Owing to the geographical situation of the Grand Duchy the matter of transit in taking a fugitive from the Grand Duchy is more complicated. It is impossible to pass from the Grand Duchy without crossing the territory of either Belgium, France, or the German Empire; indeed, if the most practical and convenient route be taken, by way of Hamburg or Bremen, Holland must also be crossed.
As regards Belgium, Article IV of the law of 1874 makes the following provision, very similar to that of the Grand Duchy quoted above:
“Art. 4. Extradition by way of transit across Belgian territory may, nevertheless, be granted without having received the opinion of the chamber of indictments on the simple production of the original or of an authenticated copy of one of the instruments of procedure mentioned in the foregoing article when it shall have been requested for a State with which Belgium has a treaty comprising the offense which gives rise to the demand for extradition and when it shall not be interdicted by article 6 of the law of October 1, 1883, and article 7 of this law.”
As regards France, Mr. Vignaud, in 1889, reported that—
“The French Government grants the right of transit across its territory of criminals surrendered by another Government. Usually this favor is obtained through the diplomatic representative of the demanding Government, who is expected to state’ that the criminal extradited is not a Frenchman, and that his crime is not political, but one at common law. The transit is made in the custody of French agents.”
I am ignorant of the German law in regard to transit of the territory of the German Emperor.
Practically it has been found that the production of at least a certified copy of the warrant of arrest is necessary to secure the transit of a fugitive across the territory of any of these countries. Some arrangement should be made with one or all of them to facilitate the transit of fugitives from justice whose extradition has been granted by the Grand Duchy.
- Not printed.↩
- Inclosure 1 in No. 21, of May 12, 1910.↩
- Pasinomie luxembourgeoise, 1877, p. 469. Minister for Foreign Affairs to Mr. Beaupré, May 6, 1910.↩
- Cour sup. de justice, 23 Janvier 1878, Pasicr., I, p. 447.↩
- Cass, beige, 18 juillet 1854, Pasicr. beige, 1854, I, p. 383. Cass, beige, 23 octobre 1854, Pasicr. beige, 1854, I, p. 456.↩
- Cour sup. de justice, 23 Janvier 1878, Pasicr., I, p. 447.↩
- Belgium, Art. V; Switzerland, Art. IX; Germany, Art. III, sec. 2; Italy, Art. VI; Denmark, Art. III; Portugal, Art. IX; Sweden, Art. VIII.↩
- Cour sup. de justice, 7 juillet 1884, Pasicr. 11, p. 283.↩
- Arts. CIV to CLVIII of the Penal Code.↩
- Quoted on p. 94.↩
- Auguste Ulveling; Les Estrangers dans le Luxembourg, p. 124.↩
- Auguste Ulveling: Les Estraugers dans le Luxembourg, pp. 109–110.↩
- Code of Criminal Instruction, Art. CCCXXII.↩