The Secretary of State to the Minister in Venezuela ( McGoodwin )

No. 550

Sir: Further replying to your No. 39 of May 6 [5], 3 [6] p.m., with regard to the possible conclusion of a treaty of extradition between the United States and Venezuela, the Department confirms its [Page 991] telegram of May 15, 1920,4 advising you that some of the provisions in the Treaty of Extradition between Venezuela and Bolivia, referred to in your said telegram as a possible model for the proposed treaty with the United States, are not in accord with the laws and practice of this country.

Specifically it may be mentioned that the following provisions of the Venezuelan Treaty with Bolivia are in disaccord either with the laws of the United States or with the practice prevailing under its system of government, and therefore would not be acceptable as provisions in a treaty of the United States:

The provision of Article VI for the trial of citizens of one contracting party in their own country for crimes committed in the territory of the other contracting party;
The provision of Article VII of the treaty that where the punishment for a given crime differs in the demanding and surrendering countries, the lesser penalty will be applied to the offender;
The provisions of Article VIII that the period of the statute of limitations running against an offense, and therefore against extradition for such offense, shall be reduced by one-half in the event of the good behavior of a fugitive during his stay in the country of asylum, and
The requirement of Article XVIII of the Treaty that deserters from naval or merchant vessels shall be delivered up.

Furthermore, the Treaty between Venezuela and Bolivia contains certain provisions which are not found in any extradition treaties of the United States, and which in the view of this Government might better be omitted from the proposed treaty. Among these provisions are the following contained in Article IX:

“If the accused whose extradition is requested should have assumed obligations which he may not discharge on account of the extradition, the extradition will take place, the party in interest having the faculty of prosecuting its right before the proper authority.”

and the provision of Article XVII for obtaining evidence from witnesses in the one country for use in the other country, by means of letters rogatory.

Other and very important objections by the Government of the United States to the proposition to make the Venezuelan-Bolivian Treaty a model for the proposed treaty between the United States and Venezuela, are that the list of crimes set forth as extraditable in the first mentioned treaty is much smaller than similar lists contained in recent treaties of the United States, and that Article XIV of the first named treaty appears to provide for the surrender of a fugitive upon the presentation only of such formal documents as a certified copy of the indictment, the warrant of arrest, or of the [Page 992] sentence imposed. With respect to the last named objection it may be said that the extradition treaties of the United States invariably require that evidence shall be submitted with the papers to establish in effect a prima facie case of guilt against the fugitive, and the pertinent statutes of the United States appear to contemplate that the surrender of a fugitive shall only be granted upon the production of such evidence of criminality.

With respect to the provision in the Treaty between Venezuela and Bolivia that the Treaty shall be in force for a term of five years, it may be observed that the usual practice in extradition treaties of the United States is to provide no fixed term for the life of the treaty, but to set forth that it may be terminated upon six months notice given by either party. The Department would prefer that this practice be followed in the case under consideration.

There are enclosed herewith copies of the Extradition Treaties between the United States and Honduras, concluded January 15, 1909,5 and between the United States and Paraguay, concluded March 26, 1913.6 These are the latest treaties of extradition concluded between the United States and countries of Latin-America, and it will be observed that they are very similar in their terms. If the Venezuelan Government should desire to conclude a treaty substantially similar to these, with the addition of the paragraph referred to in your telegram under acknowledgment, the Department will be pleased upon information from you to this effect, to forward to you full powers for the conclusion of such treaty. The Department’s instruction No. 209 of August 14, 1916, indicates that the additional paragraph in question reads as follows:

“In view of the abolition of capital punishment by constitutional provision in Venezuela, the contracting parties reserve the right to decline to grant extradition for crimes punishable by death. Nevertheless, the executive authority of each of the contracting parties shall have the power to grant extradition for such crimes upon the receipt of satisfactory assurances that in case of conviction the death penalty will not be inflicted.”

It would seem that an appropriate place for the insertion of this additional paragraph would be following Article III in the model treaties, copies of which are enclosed herewith, and therefore that this Article should become Article IV in the proposed treaty, the articles in the model following Article III being consequently advanced one number each.

I am [etc.]

For the Secretary of State:
Frank L. Polk